(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Biodiversity Heritage Library | Children's Library | Advanced Microdevices Manuals | Linear Circuits Manuals | Supertex Manuals | Sundry Manuals | Echelon Manuals | RCA Manuals | National Semiconductor Manuals | Hewlett Packard Manuals | Signetics Manuals | Fluke Manuals | Datel Manuals | Intersil Manuals | Zilog Manuals | Maxim Manuals | Dallas Semiconductor Manuals | Temperature Manuals | SGS Manuals | Quantum Electronics Manuals | STDBus Manuals | Texas Instruments Manuals | IBM Microsoft Manuals | Grammar Analysis | Harris Manuals | Arrow Manuals | Monolithic Memories Manuals | Intel Manuals | Fault Tolerance Manuals | Johns Hopkins University Commencement | PHOIBLE Online | International Rectifier Manuals | Rectifiers scrs Triacs Manuals | Standard Microsystems Manuals | Additional Collections | Control PID Fuzzy Logic Manuals | Densitron Manuals | Philips Manuals | The Andhra Pradesh Legislative Assembly Debates | Linear Technologies Manuals | Cermetek Manuals | Miscellaneous Manuals | Hitachi Manuals | The Video Box | Communication Manuals | Scenix Manuals | Motorola Manuals | Agilent Manuals
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "A practical treatise on the office of sheriff: comprising the whole of the duties, remuneration, and liabilities of sheriffs, in the execution and return of writs, and in the election of knights of the shire"

*i;iiiii:;iiiHSiii!i|iiro!(ii!iiiiiiiiS 



i 



f 




UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
LIBRARY 



PRACTICAL TREATISE 



THE OFFICE OF SHERIFF: 



COMPRISING THE WHOLE OF 



THE DUTIES, REMUNERATION, AND LIABILITIES 
OF SHERIFFS, 



EXECUTION AND RETURN OF WRITS, 



THE ELECTION OF KNIGHTS OF THE SHIRE. 



SECOND EDITION. 



By WILLIAM HENRY WATSON, Esq. 

- OF Lincoln's inn, one of her majesty's counsel. 



LONDON: 
S. SWEET; A.MAXWELL 3^ SON; V. & R. STEVENS & G.S.NORTON, 

Ua\D ISooftsellcTS antr ^ublisi&ers: 

HODGES & SiMITH, GRAFTON STREET, DUBLIN. 

1848. 






LONDON : 

rUlNTED BY C. ROWORTH AND SONS, 
BELL YARD, TEMPLE BAR. 






ADVERTISEMENT 



V 

^ TO THE SECOND EDITION. 



The extensive changes that have taken place in the law 
relating to the execution and return of writs, and otherwise 
in connection with the Office and Duties of the Sheriff, 
since the publication of this Treatise, have rendered the 
preparation of a new edition almost as laborious as the 
original compilation of the Work, and have necessarily 
added greatly to its bulk. A considerable portion of the 
Volume was prepared for press by J. S. Willes, Esq. ; 
the remainder has been completed, and the whole revised, 
by W. N. Welsby, Esq. The order of subjects adopted 
in the First Edition has been preserved, and a Chapter is 
added on the subject of the Writ of Trial. It is hoped 
that the great object of a law book — a correct statement 
of the law as it now exists — has been attained, without 
unnecessary diffuseness or iteration. 

Temple, 
October, 1848. 



a2 



1^5^S3 



PREFACE 

TO THE FIRST EDITION. 



The Author feels no little anxiety in offering the present 
work, on the Office and Duty of Sheriff, to the Profession 
at large ; conscious that many imperfections and inaccu- 
racies must necessarily be found in a work of this nature. 

The Author has attempted to combine the law respecting 
the office of Sheriff with practical directions for the guidance 
of Under-sheriffs, How far this has been accomplished 
the Author leaves to the Profession. The division adopted 
in the present work differs from that of any other publica- 
tion on the same subject. In the first three chapters the 
nature of the office, and the oaths and ceremonies necessary 
on the first appointment of the Sheriff, are noticed ; the 
fourth chapter treats of the duties of bailiffs of franchises ; 
the fifth chapter enters fully into the duties and powers of 
the Sheriff in the execution and return of writs in general ; 
and the subsequent chapters embrace the Sheriff's duty on 
particular writs, classing under the head of each the manner 
in which it is to be executed ; how returned ; the fees pay- 
able in respect thereof; and the proceedings against the 
Sheriff for not, or for improperly, executing or returning 
the writ. Thus, by reference to each head, the manner in 
which a writ is to be executed and returned will be easily 
found. In Chap. II., Sect. 2, the Sheriff will find in what 
manner the office is to be transferred ; in Chap. III., Sect. 1, 
he will find what deputies and officers should be appointed 



VI PREFACE. 

on his entrance into office, and when and in what manner 
the appointments should be made. The Forms of Warrants 
and Returns are collected in the Appendix ; in the corre- 
sponding chapter of which are arranged all the forms 
belonging to each chapter of the book. Those forms the 
Author has obtained from gentlemen who have served the 
office of Under-sheriff, and they have been carefully com- 
pared with analogous forms in other works. To the gen- 
tlemen who have furnished him with these forms, and with 
practical information on this subject, the Author acknow- 
ledges his obligations. 

2, Lamb's Buildings, Temple, 
February/ 1, 1827. 



TABLE OF CONTENTS. 



CHAP. I. 

OF THE OFFICE AND MODE OF ELECTING SHERIFFS. 

Sect. 1.— Of the Antiquity of the Office— Of the Dignity and Duties of the 
Office — Who are qualified for, or disqualified from the Office— Of 
the Punishment for refusing the Office — Residence — Offices which 
a Sheriff cannot hold — Of the Duration and Determination of the 
Office Page 1—9 

Sect. 2. — Of the mode of electing Sheriffs for Counties in general— For 
Durham — Wales — Westmoreland — Cities and Towns— Of the 
Sheriffs of London and Middlesex 9—14 

CHAP. II. 

OF THE WARRANT OF APPOINTMENT AND OATHS OF THE NEW SHERIFF ; 
AND THE TRANSFER OF THE OFFICE. 

Sect. 1. — The Sheriff's Warrant of Appointment 15 — 17 

Sect. 2.— The Sheriff's Oath of Office, how and before whom taken— The 
Declaration and Oaths at Sessions, when and how to be taken 1 7 — 21 
Sect. 3.— Of the Transfer of the Office— Of the Assignment of Writs ; of 
Prisoners — When the Authority of the Sheriff ceases— Of the 
Liabilities of the old Sheriff after expiration of his Office — Ap- 
portionment of Fees between old and new Sheriff, on a levari 
facias 21 — 26 

CHAP. in. 

OF THE sheriff's OFFICERS; THEIR APPOINTMENT, POWER, 
AND DUTIES. 

Sect. 1.— The Sheriff not to let his Bailiwick to Farm— What Officers he 
should appoint — Offices not to be sold — Replevin Clerks— Clerk 
of the County Court— Deputies in the Courts at Westminster 

27—32 

Sect. 2.— The Under-sheriff— Not to be an Attorney, &c.— His Oath, his 
Power, and Duties — His Office, how determined— His Liabilities — 
His Securities — Duties on entering his Office 32 — 39 

Sect. 3.— Bailiffs— Perpetual Bailiffs— Bound Bailiffs- Special Bailiffs- 
Authority and Duties of Bailiffs ; when the Sheriff is responsible 
for the acts of his Bailiffs, their security to the Sheriff .... 39—47 



CONTENTS. 



Sect. 4.— Gaoler — Sherifif's Jurisdiction over Gaols — Sheriff liable for de- 
fault of Gaoler — Gaoler's security to the Sheriff — Regulations 
resj)ecting Gaols — Bonds to Gaoler — Of his Fees . . Page 48 — 53 



CHAP. IV. 

OF BAILIFFS OF FRANCHISES. 

Of the Nature of a Liberty — What Writs the Bailiff may execute in his 
Liberty — Bailiff's Qualification— To keep a Gaol, attend Assizes, 
&c.— Of the Sheriff 's Mandate — The Bailiff's Power and Duties — 
His Liabilities 54—62 

CHAP. V. 

OF THE EXECUTION AND RETURN OF WRITS IN GENERAL. 

Sect. 1. — Of the Direction of Writs — Sheriff bound to execute, and justified 
in the execution of, all Writs directed to him 63 — 70 

Sect. 2. — How, where, and when the Sheriff may execute Writs — Warrants 
to Officers — When Officer may break open Doors — Raising the 
Posse Comitatus — Where Writ may be executed ; when ; Sunday 

70—81 

Sect. 3. — Rule to return the Writ — When granted — The Rule— Attach- 
ment, when and how granted for not returning the Writ . . 81 — 87 

Sect. 4.— The Return — By whom made — Form of the Return — Must be 
certain — Must be a complete Answer — Must not falsify the Re- 
cord — How aided — When amended — When conclusive — Particular 
Returns ; Tarde ; Languidus; Rescue — Rescuers, how punished — 
Mandavi Ballivo 87—99 

Sect. 5. — Sheriff's Fees for executing and returning Writs— Poundage on 
Fi. Fa. ; on Ca. Sa. ; on Extents ; on Elegit — Habere Facias Pos- 
sessionem — How recovered 99 — 117 

Sect. 6. — Actions against the Sheriff— At the suit of the Plaintiff.— At the 
suit of the Defendant and third persons— Justification by the She- 
riff, &c.— Evidence 117—124 



CHAP. VL 

OF THE sheriff's DUTY ON A BAILABLE CAPIAS. 

Sect. 1.— Of the Arrest; when, where, how made — Detainer— Sheriff's 
Fees on an Arrest— Privilege from Arrest, when to be allowed by 
the Sheriff— Peers, Ambassadors, Attorneys, Witnesses, Bank- 
rupts, Seamen, and Soldiers 125 — 144 

Sect. 2. — Sheriff's Duty after the Arrest— How the Defendant should be 
treated after the Arrest— Deposit in lieu of Bail— The Bail-Bond ; 
Sheriff obliged to discharge Defendant on giving a Bail-Bond — In 
what form, to whom, for what amount to be made— When the She- 
riff must discharge the Defendant 144—157 



CONTENTS. IX 

Sect. 3.— Proceedings on the Bail-Bond — Assignment of the Bail-Bond ; 
where, by whom, and how made— Action on the Bail-Bond ; in 
what Court to be brought ; when Proceedings may be stayed on 
the Bail-Bond Page 157— 167 

Sect. 4. — Proceedings against the Sheriff — Rule to return the Writ — 
Return — Rule to bring in the Body, object thereof, at what time 
obtained, how complied with — Attachment for not bringing in the 
Body, how obtained ; when set aside for irregularity ; regular, on 
what terms set aside— To what extent the SheriflFis liable on the 
Attachment — His Remedy over 167 — 179 

Sect. 5.— Actions for Escape, &c. — In what cases maintainable — The De- 
claration — Pleadings— Evidence — Damages 179 — 188 

CHAP. VII. 

CAPIAS AD SATISFACIENDUM. 

Sect. 1.— In what cases it lies— The Arrest— The Sheriff's Duty after the 
Arrest — Poundage — Return — Prisoner, how discharged . 189 — 199 

Sect. 2. — Escape — What shall be said to be an Escape — When the Sheriff 
shall be excused — Voluntary and negligent — Of the Action for an 
Escape; by whom, against whom it lies — Declaration — Pleas — 
Evidence — Action over, by the Sheriff for his Indemnity, where 
the Defendant has escaped 200 — 217 



CHAP. VIII. 

THE sheriff's DUTY IN THE EXECUTION AND RETURN OF PROCESS 
OF OUTLAWRY. 

Sect. 1. — Of the Exigent and Writ of Proclamation — In what cases and in 
what manner a party may proceed to Outlawry — Exigent, how 
executed— Return, how made — Writ of Proclamations — On Out- 
lawry in Civil Actions — On Indictments ; when required, how 
made — Sheriff 's Return; Form of; into what Office made; Fees 
thereon 218—227 

Sect.2.— Of the General and Special Writs of Capias utlagatum, how exe- 
cuted—Bail, how taken on — Special Capias utlagatum, how exe- 
cuted — Form of the Inquisition — Sheriff's Return — Preference 
between several Writs of Capias utlagatum — Fees thereon — Action 
against the Sheriff— Restitution 227—234' 

CHAP. IX. 

HABEAS CORPUS. 

In what cases it lies— How executed — Return thereto— Penalty for not 
obeying the Writ — Actions for false Return to, Escape, &c. — She- 
riff' 's Fees 235—240 



X CONTENTS. 

CHAP. X. 

FIEHI FACIAS. 

Sect. 1. — IIow, when, and where Goods may be seized under a Fieri Facias 
— Property in Goods, from what time bound — Poundage — To what 
amount the Levy may be made— Priority in case of several Exe- 
cutions between several Subjects, and between the Subject and the 
Crown Page 242—249 

Sfct. 2. — What things may and what may not be seized under a Fi. Fa. — 
Leases for Years ; Fixtures ; Growing Crops, and Agricultural 
Produce, how to be sold 249 — 255 

Sect. 3. — What shall be said to be the Goods of Defendant, to be liable to 
be taken — Equitable Interest — Partnership Property — Goods be- 
longing to Defendant as Executor, or in riglit of his Wife — Goods 
sold bon^ fide, and where the Defendant has become Bankrupt 

255—268 

Sect. 4. — Goods seized, when and how to be sold — Venditioni exponas — 
Distringas nuper vicecomitem — When Goods may be released, 
Defendant giving Security for or paying Debt and Costs — She- 
riff's Property in Goods seized — Effect of Levy 268 — 274 

Sect. 5. — Landlord's Claim for Rent, under the Statute 8 Anne, c. 14.. 

274—279 

Sect. 6. — Sheriff, how protected, where there are adverse claims on Goods 
seized — Interpleader 279 — 289 

Sect. 7. — Sheriff's Return — Nulla Bona — Fieri Feci— Goods remaining in 
hands for want of buyers — Supersedeas ; Rescue ; Return to Writs 
against Executors 289 — 295 

Sect. 8. — Actions against the Sheriff, for the Money levied ; for a false Re- 
turn; for a wrongful Seizure — Actions by the Sheriff. ..295 — 304 



CHAP. XI. 



Of the Nature of the Writ — What may be taken under it— How executed — 
Lands and Goods, how delivered — Return— Poundage — Sheriff's 
Liability— Restitution 305—316 



CHAP. xn. 

HABERE FACIAS POSSESSIONEM. 

Of the Writ— How executed— Sheriff's Duty in case of Disturbance— Re- 
turn — Fees thereon — Actions against the Sheriff in respect 
thereof 317—322 



CONTENTS. XI 

CHAP. XIII. 

WRIT OF INQUIRY. 

Of the Writ — Inquest, at what time, and before whom, to be held — Inquest, 
Proceedings on — Evidence — Damages, how assessed — Return — 
Fees— Sheriff's Liability Page 323—330 



CHAP. XIV. 

WRIT OF TRIAL. 

Of the Writ — When and how executed — Return — New Trial, &c. — Judg- 
ment and Execution — Sheriff's Fees 331 — 335 



CHAP. XV. 

OP THE EXECUTION OF PROCESS IN REAL ACTIONS. 

Sect. 1. — Of Mesne Process — Summons — Proclamation — Attachment and 

Distress infinite — Grand Cape 336 — 343 

Sect. 2.— Of the Writ of View— Trial— Grand Assize 344—346 

Sect. 3. — Execution — Habere facias seisinam 347 — 348 



CHAP. XVI. 

OF THE EXCHEQUER WRITS. 

Sect. 1. — Of the Nature of the Sheriff's Office as Collector of the Revenue 
of the Crown — Of the ordinary Exchequer Process, Great Roll ; 
the Summons of the Pipe ; Summons of the Green Wax ; Fi. Fa. 
against Clergymen — Distringas, against Collectors of Taxes, against 
Parishes, against Accountants — Fi. Fa. on Port Bonds.. 349 — 355 

Sect. 2.— Of the Writ of Extent— Of the Nature and Form of the Writ — 
How executed — Arrest of the Defendant — Seizure of Defendant's 
Goods — Goods from what time bound, priority between the Crown 
and the Subject, Goods distrained, &c. — Priority between several 
Extents — When the Crown has a specific Lien — Lands, how seized 
— From what time bound — Debts, how taken — Of the holding the 
Inquisition — Sheriff's Return, Liabilities, &c 355 — 372 

Sect. 3. — Poundage on Crown Writs — Statutes regulating the Poundage — 
Decisions thereon 372 — 376 

Sect. 4. — Of the Sheriff's Accounts — Apposals — Accounts — Allowance to 
Sheriffs on passing their Accounts 376 — 384 



XII CONTENTS. 

CHAP. XVII. 

OF JURIES, AND OF THE SHERIF1''S DUTY AT SESSIONS AND ASSIZES. 

Sect. 1. — Of Juries, who are qualified to serve on — List of Persons qua- 
lified, how made out — Venire facias, Sheriff"'s Duty thereon — Spe- 
cial Juries, how struck and summoned — Penalty on Sheriff" for 

breach of Duty Page 385—390 

Sect. 2.— Sheriff^'s Duty at Assizes 390—392 

Sect. 3.— Sheriff's Duty at Sessions 392—398 



CHAP. XVIII. 

OF THE SHERIFF'S COURTS, AND PROCEEDINGS THEREIN. 

Sect. 1.— The Sherift''s Torne 399—401 

Sect. 2.— The County Court 402—413 

Sect. 3. — Of the Sheriff's Duty and Liabilities in gi-anting Replevins.. .. 

413—423 

CHAP. XIX. 

OF THE sheriff's DUTY IN THE ELECTION OF MEMBERS OF 
PARLIAMENT. 

Sect. L — OftheAVrit for the Election of Members — Proclamation — Poll 
Clerks— Erection of Booths, &c.— Of the Candidates . . 424—432 

Sect. 2. — Of the Poll, how taken — Oaths administered to the Electors — 
Poll, how closed — Scrutiny— Sheriff's Return 432 — 438 

Sect. 3.— Liabilities of Sheriff for Misbehaviour — Action by Sheriff for 
Expenses 438 — 443 



CHAP. XX. 

OF THE sheriff's DUTY IN THE ELECTION OF CORONERS 444—452 



CHAP. XXI. 

OF THE sheriff's DUTY IN EXECUTING WRITS OF ATTACHMENT, SCIRE 

FACIAS, &c 453 — 454 



CONTENTS. 



APPENDIX. 



Chap. II. Sect. 2. — Schedule of the Oaths to be taken by the Sheriff, 
and which Schedule is annexed to the Return 

of the Dedimus Page 455 

Oath of Office of Sheriffs of Wales 455 

Recognizance of Sheriffs of Wales 455 

Sect. 3. — Letter of Attorney to receive the Gaol 457 

Letter of Attorney to deliver the Gaol 458 

Chap. III. Sect. L — Letter of Attorney, appointing Replevin Clerks 458 
Letter of Attorney, appointing Deputies to hold 

the County Court 458 

Sect. 2. — Appointment of Under-Sheriff 459 

Form of Covenants between Under-Sheriff and 

Sheriff 459 

Bond of Indemnity from Under- Sheriff's Deputy 

or Agent, to the Under-Sheriff, where the 

Under-Sheriff appoints a Deputy 461 

Sect. 3.— Bond of Indemnity from Bailiffs and their 

Sureties 463 

Bailiff's Oath 464 

Indorsement on a Writ, on the Appointment of 

Special Bailiff 465 

Warrant to Special Bailiff 465 

Sect. 4. — Security from Gaoler to the Sheriff 465 

A Charge to the Gaoler against a Prisoner .... 467 

Gaoler's Receipt upon the same 467 

Liberate in pursuance of an Authority from the 

Plaintiff, or his Attorney 467 

A Discharge to a Gaoler on a Supersedeas .... 468 

Chap. IV.— Form of a Sheriff's Mandate to the Bailiff of a Liberty . . 468 
Return of the Bailiff of a Liberty 468 

Chap. V. — Warrant to raise the Posse Comitatus 468 

Chap. VI. Sect. 1. — Warrant on a Bailable Capias 469 

Mandate to Sheriff of Lancashire .^ 469 

Sect. 2.— Bail Bond 469 

Assignment of Bail- Bond 470 

Sect. 3.— Returns to Bailable Writs of Capias 470 — 472 



XIV CONTENTS OF APPENDIX. 

Chap. VII. Sect. 1.— Warrant on Ca. Sa Page 473 

Returns to Ca. Sa 473, 474 

Chap. VIII. Sect. 1.— Returns to a Writ of Exigent 474, 475 

Return to Writ of Proclamation 475 

Sect. 2. — Return and Inquisition on Capias utlagatum.475, 476 

Chap. IX. — Return to a Writ of Habeas Corpus 476 

W'arrant to Gaoler and Bailiff, to convey Prisoner on 
Habeas Corpus 477 

Chap. X. Sect. L— Warrant on Fi. Fa 477 

Sect. 4. — Bill of Sale from the Sheriff, of Goods taken on 

aFi. Fa 477 

Sect. 6. — Condition of a Bond, indemnifying the Sheriff for 

selling Goods on a Fi. Fa 478 

Condition of a Bond of Indemnity, forabandoning 

Goods and returning Nulla Bona 478 

Sect. 7.— Returns to Fi. Fa 479-482 

Chap. XI. — Warrant to take the Defendant's Goods on an Elegit .... 482 

Charge to the Jury 483 

Juryman's Oath 483 

Return and Inquisition on an Elegit 483 

Chap. XII. — Warrant on Hab. fac. poss 485 

Returns to a Writ of Hab. fac. poss 485, 486 

Chap. XIII. — Deputation to take an Inquisition 486 

Oaths to be administered to the Jury and Witnesses on a 

Writ of Inquiry 486 

Return and Inquisition on a Writ of Inquiry ........ 487 

Warrant on a Writ of Ad quod damnum 487 

Return and Inquisition on a Wi-it of Ad quod damnum 487 

Chap. XIV. — Precept for summoning Jury on Writ of Trial 488 

Oaths to Jury and Witnesses 488 

Certificate to stay Judgment 489 

Postea 489 

Chap. XV. Sect. 1.— Writ of Quare Impedit 489 

Warrant on a Writ of Quare Impedit 489 

Summons thereon 490 

Returns to Quare Impedit 490 

Warrant on Pone after Quare Impedit 491 

Distringas, and Returns thereto 491, 492 

Chap. XVI. Sect. 1.— Warrant to levy on the Great Roll 492 

Warrant on Summons of the Pipe 492 

Warrant on Summons of the Green Wax .... 493 
Return and Inquisition on the Great Roll .... 493 
Returns to the other Exchequer Processes. . . . 494 



CONTENTS OF APPENDIX. XV 

Chap. XVI. Sect. 1. — continued. 

Returns to Exchequer Distringases .... Page 495 

Warrant on Exchequer Sci. Fa 496 

Summons and Returns thereon 496 

Sect. 2.— Warrant on an Extent 497 

Form of Subpcena duces tecum, to attend Inqui- 
sition on an Extent 497 

Returns to Writ of Extent 498 

Inquisition on an Extent, with various findings 499 
Warrant on a Venditioni Exponas 505 

Chap. XVII. Sect. 1— The Jury Acts, 6 Geo. 4, c. 50 505 

5& 6 Will. 4, c. 76, ss. 121, 123 528 

2 & 3 Vict. c. 71, s. 4 529 

9 & 10 Vict. c. 95, ss. 70, 72, 73 529 

Sect. 2. — Warrant to summon Nisi Prius Jury 530 

Warrant to summon Grand Jury 531 

Warrant to summon Special Jury on a View 531 

Return to Assize Precept 531 

Panels to be annexed thereto 531, 532 

Return to the Assize Venire 532 

Return to Habeas Corpus Jurat, when a view 

is directed 532 

Return to Distringas Jurat, on a View .... 533 

Same, where Jury appeared 533 

Letter of Attorney to carry Sentence of Death 

into Execution 533 

Sect. 3. — Warrant to summons a Sessions' Jury .... 533 

Return to Sessions' Precept 534 

Panels to be annexed thereto 534 

Chap. XVIII. Sect. 2. — Form of Admission in Declaration in County 

Court, to reduce the Damages below 40s. . 534 

Warrant upon a Justicies 534 

Summons upon a Warrant on a Justicies . . 535 

A County Court Execution 535 

A County Court Subpoena 535 

Return to Re. Fa. Lo 535 

Schedule annexed to Return to Re. Fa. Lo. . 536 
Transfer of Plaints depending in County 

Court 536 

Sect. 3.— Warrant in Replevin 536 

Summons thereon 537 

Form of Replevin Bond 537 

Assignment of Replevin Bond 537 

Precept in Nature of Withernam 538 



XVI CONTENTS OF APPENDIX. 

Chap. XVIII. Sect, ti—continued. 

Warrant on a Writ de Retorno Habendo..Page 538 

Return to Retorno Ilabendo 539 

WaiTant on Writ of Second Deliverance. . . . 539 

Returns to Writ of Second Deliverance 540 

Bond to be taken on Writ of Second Deliver- 
ance 540 

Return to Writ of Inquiry in Replevin ., .. 540 

Chap. XIX. Sect. 1. — Precept to the Returning Officer of a Borough 

to elect Members 541 

Indorsement to be made thereon 541 

Sect. 2. —Bribery Oath 542 

Declaration of Qualification by Candidate . . 542 

Certificate thereof 542 

Return of the Election of Members for a 
County 543 

Oaths of Allegiance, Supremacy, and Abjura- 
tion 543, 544 

Declaration in the Nature of the Oath of 
Abjuration, to be taken by Quakers 544 

Roman Catholic's Oath 545 

Chap. XX. —Notice of the Time for the Election of a Coroner 546 

Return to a Writ de Coronatore Eligendo 546 

Chap. XXI. — Warrant on an Exchequer Attachment 546 

Warrant on an Attachment out of Chancery, with Procla- 
mations 546 

Returns to an Attachment 547 

Writ ne Exeat Regno 547 

Warrant thereon 548 

Returns to a Writ ne Exeat Regno 548 

Warrant on a Writ de Excommunicato Capiendo 549 

INDEX 551 



THE 

OFFICE AND DUTIES OF SHERIFFS. 



CHAPTER I. 

OF THE OFFICE AND MODE OF ELECTING SHERIFFS. 

Sect. I. — Of the Antiquity of the Office. — Of the Dignity and 
Duties of the Office. — Who are qualified for, or dis- 
qualified from, the Office. — Of the Punishment for 
refusing the Office. — Residence. — Offices which a 
Sheriff cannot hold. — Of the Duration and Determi- 
nation of the Office. 
II. — Of the Mode of electing Sheriffs for Counties in 
general. — For Durham. — Wales. — Westmoreland. — 
Cities and Torvns. — Of the Sheriffs of London and 
Middlesex. 



Section I. 
Of the Antiquity and Dignity of the Office of Sheriff. 

The sheriff is an officer of great antiquity in this kingdom, his The antiquity 

name being derived from two Saxon words, seyre, that is, a shire 

or county, and reve, keeper, bailiff, or guardian. And it is said 

by Camden (a), that sheriffs were first appointed by king Alfred, 

on his division of England into counties. But Lord Coke seems 

to think that the office is of still greater antiquity, indeed that 

the sheriffs, shires, and counties, existed in the time of the 

Romans in this country, and before, and that under the Romans 

the sheriff was the officer of the consul, and the Romans called 

that consulatum, which we call comitatum (i). He is certainly 

(a) Page 156. (&) Co. Litt. 168a; Dalt. Sheriff, 5. 

B 



2 OF THE ANTIQUITY AND DIGNITY, &C. 

CHAP. I. Styled in Latin vice comes; as being the deputy of the earl, or 

Illl_ comes ; to whom the custody of the shire is said to have been 

committed, at the first division of this kingdom into counties. 
And it seems that earls, by reason of their high employments, 
and attendance upon the king, being unable to follow all the 
business of the county, were delivered of all that burthen, and 
only enjoyed the honour as they now do, and that the labour 
devolved upon the sheriff; "so that now the sheriff doth all the 
king's business in the county ; and although the sheriff is still 
called vice comes, yet all he doth and all his authority is imme- 
diately from and under the king, and not from and under the 
earl (c)." 
The dignity At this day the sheriff has all the authority, for the adminis- 

and duties of . . „ . . , . „ • i i 

the office. tration and execution oi justice (excepting so tar as it has been 
abridged by statutes since that time), which the earl or comes 
had ; the queen committing to the sheriff the charge or custody 
of the county ; commisimus vobis custodiam comilatus nostri de, 

Conservator &c. (d). His ofRce is fourfold. Ist, He is the keeper of the 

ot the peace. , . '■ 

queen's peace within the county, both by the common law and 
by special commission ; and as such he is the first man in the 
county, and superior to any nobleman therein, during his 
office (c). He may apprehend, and commit to prison, all persons 
who break the peace, or attempt to break it ; and may bind any 
one in a recognizance to keep the queen's peace. He may, and 
is bound, ex officio, to pursue and take all traitors, murderers, 
felons, and rioters ; he hath also the custody and safe-keeping 
of the county gaol ; he is to defend the same against rioters, 
and for this purpose, as well as for taking rioters and others 
breaking the peace, and also for attending the queen to the war 
when enemies come ; he may command all the people of his 
county to attend him, which is called the j^f^sse comitatus, or 
power of the county, and this summons every person above 
fifteen years old, and under the degree of a peer, is bound to 
attend upon warning, under pain of fine and imprisonment(/). 

(c) Dah. 2 ; Co. Litt. 168 a. 2ndly. Vitce- legis; he is, after long 

(d) Co. Lilt. 168; 9 Rep. 49; suits, chargeable to make execution, 
Dalt. 2; 1 Bl. Coin. 339. This which is the life and fruit of the law. 
charge is said by Lord Coke to be 3rdly. Vitce reipublica: ; he is lyiinci- 
threefold. 1st. Vitivjiistilice ; for no palis coiisei-vatoi- pads within the 
suit begins, and no process is served, countie, which is the life of the corn- 
but by the sheriff; also he is to return monwealth, vita reipublica: pax. 
indiffbrent juries for the trial of men's (e) 1 Roll. Hep. 337. 

lives, liberties, lands, goods, 6cc. (/) Stat. 2 Hen. 5, c. 8. 



OF THE DUTIES AND POWER OF THE SHERIFF. 



2dly, In his ministerial capacity, the sheriff is bound to exe- chap. i. 
cute within his county or baihwick, all process issuing from the __^Ilil 



queens superior courts of lustice. On bailable process, he is to The minuie- 
execute the writ, to arrest, and to take bail; when the cause iiie sheriff in 
comes to trial, he must summon and return the jury; and when w'ru'a'.""^ 
it is determined, he must execute the judgment of the court. 
In criminal matters, he also arrests and imprisons ; he returns 
the jury; he has the custody of the delinquent, and he executes 
the sentence of the court, though it extend to death itself (g). 

The sheriff is also bound to execute the precepts of commis- 
sioners of sewers, of coroners, and verderers, and, as will be 
more fully detailed hereafter, to attend the judges of the supe- 
rior courts of law on their circuits, and execute all their lawful 
commands. 

He has also the custody of the gaol of his county, and this Tiie custody 
duty cannot be transferred by the crown to any other officer (/^). ° ^^°^' 

Sdly, As the queen's bailiff, he must seize into the queen's To collect the 
hands all lands devolved to the crown by attainder or escheat ; mies"&c?^^' 
must levy all fines and forfeitures ; must seize and keep all 
waifs, wrecks, estrays, and the like, unless they be granted to 
some subject ; and must also collect the queen's rents within his 
bailiwick, if commanded by process out of the Exchequer (i). 

4thly, In his judicial capacity he is to hear and determine all His judicial 
causes of 40*. value and under by plaint, or to any amount by coumyco'nrts: 
rvrit ofjusiicies, in his county court ; and also to make, to hear, mem'beis^of 
and determine replevins, and other suits in his county court. P*'''*'"«"'' 
Also, in the course of the suit it may become his duty to pre- 
side as judge at the execution of writs of trial, or of inquiry of 
damages. He formerly held pleas of the crown in his torne ; 
but by Magna Charta, he, together with the constable, coroner, 
and certain other officers of the crown, are forbidden to hold 
any pleas of the crown. He is likewise to decide the elections 
of knights of the shire (subject to the control of the House of 
Commons), of coroners, and of verderers ; and to return such 
as he shall determine to be elected. 

The sheriff hath no power or authority out of his county (F) ; Authority 



(g) 1 Bla. Com, 444 ; see R. v. (k) Le Count de Northumberland 

Antrobus, 2 Ad. & El. 788. v. Le Count de Devon, 2 Roll. Rep. 

(h) Mytton's case, 4 Rep. 32 b. 163 : Plowd. 37 a. 
(i) Dalt. c. 9, c. 5. 

B 2 



coextensive 
uf his county. 



4 QUALIFICATIONS AND DISABILITIES 

CHAP. I. excepting where lie is commanded by a writ of habeas corpus to 
^^^^' '• convey a prisoner out of his county : and then, if the sheriff 
convey his prisoner through several counties, yet the prisoner is 
in the custody of the sheriff in every one of those counties {m) ; 
and excepting also, where a prisoner of his own wrong, without 
the consent of the sheriff or gaoler, make an escape, and fly into 
another county, the sheriff or his officers, upon fresh pursuit, 
may take him again in another county (n). The sheriff, how- 
ever, may do mere ministerial acts out of his county, as making 
a panel or any return (o), or assigning a bail bond (p) ; but it is 
said, that if the sheriff make a panel or a return when he is out 
of England, it is void ; for he is an officer only in England (y). 
Qnaiificaiinn Because the office of sheriff is of high trust and confidence, 

for the office ... •, -r-»i .. i i ii_ 

ot sheriff. " it IS meet, says Dalton, " that such persons as be chosen 
thereunto be men of good sufficiency, and such as may attend 
it, lest otherwise the king be much indamaged, and his people 
be disinherited and oppressed ; and for that purpose, the sta- 
tutes made 9 Edw. 2, de vice comitibus ; 2 Edw. 3, c. 4 ; 4 Edw. 3, 
c. 9 ; and 5 Edw. 3, c. 4, have ordained, that no man shall be 
sheriff in any county except he have sufficient lands within the 
same county where he shall be sheriff, whereof to answer the 
king and his people, in case any man shall complain against 
him." At the present day the most opident and respectable 
commoners in each county fill the office of sheriff (r). By 
Stat. 9 Edw. 2, Lincoln, it is enacted " that no steward or bailiff 
to any great lord be made sheriff, (except he be put forth of 
service), but such persons only shall be appointed as may wholly 
attend to the king and his people." 
Who are By the , Stat. 1 Rich. 2, c. 11, (which does not extend to the 

drsqualified sheriffs of a town corporate, although a county in itself (s),) it 
tbe"offi7e!'°^ is Ordained, that none that hath been sheriff of any county by 
an whole year, shall be within three years next ensuing chosen 

{m) Plowd. 37 a. hoc officium potentissimi sccpenumero 

(n) Dalt. 23 ; Plowd. 37 a. totius regni prnceres, barones, comites, 

(o) Dalt. 22. duces, interdum el regiim Jilii. — Spel. 

{p) Greo;son v. Heather, 2 Lord Glos. Vicecom. Bishops also were 

Raym. 1455 ; 2 Stra. 727, S. C. not unfrequently sheriffs. Richard, 

(q) 9 Htn. 4, 1 ; Bro. Officer, 7; Duke of Gloucester (afterwards Rich- 

Dalt. 22. ard 3) was sheriff of Cumberland five 

(r) " In ancient times this office years together." 1 Hla. Com. 346, 

was frequently executed by the nobi- note. Christian's edition. 

lity, and persons of the highest rank (s) R. v. Haythorne, 5 B. & C. 

in the kingdom. Eligebanlur olim ad 529, n. 



FOR THE OFFICE OF SHERIFF. 

again, or put in the same office of sberifT, if there be other suf- 
ficient in the said county of possessions and goods to answer to - 
the king and to his people" (0 ; and by the stat. 23 Hen. 6, 
c. 8, whosoever shall take upon him to have or occupy the office 
of sheriff by any grant or patent thereafter to be made for years, 
life, in fee, or in tail, shall stand for ever and at all times disabled 
to be or bear the office of sheriff within any county of England, 
and liable to forfeit 200/. As the queen has an interest in every 
subject, and a right to his service, it is a general rule that no 
man can be exempt from the office of sheriff but by act of par- 
liament, or letters patent (i<) : but if a man is disabled by judg- 
ment or process of law, as imprisonment for debt, to bear an 
office, he is excused, 7iam judicium redditur in invitum (a:) ; yet 
where he may remove the disability, as in case of excommuni- 
cation, he shall take no advantage of his disability {y). Another 
exception exists in the case of practising barristers and attornies, 
who are exempt by reason of the incompatibility of the office 
with their professional duties (2). And the same it would seem 
in the case of members of parliament (a). By 2 Geo. 2, c. 20, 
a militia officer while on service is exempt. 

The question formerly agitated, whether or not persons elected 
sheriffs in corporate towns were exempt from serving the office 
of sheriff by reason of their being dissenters, or of not having 
taken the sacrament as required by the stat. 13 Car. 2, c. 2, 
s. 1 (b), and for many years settled by a decision of the House 
of Lords, where it was decided that a dissenter, or person not 
complying with the provisions of the 13 Car. 2, was wholly dis- 
abled from serving the office (c), was finally set at rest by the 
statute of 9 Geo. 4, c. 17, (explained by 5 & 6 Will. 4, c. 28,) 

(t) By the stat. 9 Geo. 1, c. 3, s. 9, (2) Mayor of Norwich v. Berry, 4 

the sheriff of Norwich, on payment of Burr. 21 14. 

a fine of 300/., is exempted from serv- (a) Resolution of the House of 

ing the ofSce : but by paying the fine Commons, 7th January, 1689 ; I Roe 

it was held that he was only exempt on Elections, 161. 

for one yenr ; Rex ?;.Wnodrow, 2 T. R. {!>) Rex v. Larwood, 1 Salk. 1 67 ; 

731. See also Rex ti. Bower, 2 Dowl. Lord Raym. 29, S. C. ; 4 iVIod. 269 ; 

& Ry.842 ; 1 Bar. & Ciess. 585, S. C. Eyre, J. dmentiente, with whom the 

(«) Earl of Shrewsbury's case, 9 Lord Keeper is said to have coincided 

Rep. 46; JMoore, 111; Pelham's in opinion ; Mayor, &c. of Guildford, 

case, Saville, 43. v. Clarke. 2 Vent. 247. 

(j) Rex V. Larwood, I Salk. 169 ; (c) Harrison v. Evans, 2 Burn's 

1 Ld. Raym. 29 ; 4 Mod. 273, S. C. Ecc. L. 185 ; 6 Bro. P. C. 181 ; cit. 

(v) The Attorney-General v. Read, in Cowp. 535, ib. 393 n. ; Bac. Abr. 

2 Mod. 299. SherifF(B.) 



CHAP. I. 
SECT. I. 



now LONG THE OFFICE CONTINUES. 



criAP. 1. 

SECT. I. 

How punish- 
ed lor refus- 
ing (he ollice 



He need not 
r<!side in his 
count>'. 



He cannot be 
a magistrate 
or a member 
for tlie 
county. 



Not to serve 
the oflTice 
above one 
year. 



which makes dissenters eligible to the office. And since 5 & 
6 Will. 4, c. 28, a Jew has been one of the sheriffs of London. 

If a person refused to take upon him the office of sheriff, 
when appointed, it was usual to punish him in the Star Chamber; 
but now he may be proceeded against by indictment or informa- 
tion in the Queen's Bench (d). Also, if he refuse to take the 
oaths enjoined hiin, or officiate in his office before he is thus 
qualified, that court, which hath a general superintendency over 
all officers and ministers of justice, will grant an information 
against him. It has been held, that a refusal to take the oaths 
amounts to a refusal of the office (e). By particular statutes, or 
the bye laws of cities and towns, (which, being counties, have 
sheriffs,) certain pecuniary penalties are inflicted upon persons 
refusing to take upon them the office when elected, and those 
penalties are recoverable by action ( /). 

By the statute of 4 Hen. 4, c. 7, it was ordained, " that 
every sheriff of England shall abide in proper person within his 
bailiwick for the time that he should be such officer;" and this 
formed part of the oath of both the sheriffs of England and 
Wales. But it would appear that this statute is repealed in this 
respect by the statute of 3 Geo. 1, c. 15, ss. 18, 20 ; for by the 
oath of office directed by that act to be taken, it is not required 
of either the sheriffs of England or Wales to swear that they 
will be resident in their counties. 

By the statute of 1 Mary, st. 2, c. 8, s. 2, sheriffs are dis- 
qualified from acting as justices of the peace during the con- 
tinuance of their office, and all acts done by them as justices of 
the peace are void. And it is holden, that the sheriff cannot be 
elected a knight of the shire for the county of which he is 
sheriff(^). 

In former times, the sheriffs held their offices for a term of 
years, of the king's grant, and great oppressions having resulted 
therefrom, it was ordained and established, by divers acts of 
parliament, " that no sheriff (/«), under-sheriff(j), or sheriff's 
clerk, shall tarry or abide in his office, or shall occupy the said 
office above one year, upon pain of forfeiting 200/. yearly as 



(d) Dalt. 15; Rex v. Woodrow, 2 
T. R. 731. 

(e) Starr v. The Mayor of Exeter, 
3 Lev. 116; 2 Show. 158, S. C. ; 
Carth. 307. 

(/) See post, tit. Sheriffs of Lon- 



don, &c. 

(g) 4 Inst. 48; Litt. Rep. 326. 

(h) 14 Edw. 3, Stat. 1, c. 7; 28 
Edw. 3, c. 7. 

(0 42 Edw. 3, c. 9; 23 lieu. 6, 
C.8. 



HOW LONG THE OFFICE CONTINUES. t 

long as he occupieth the office :" and every pardon made for chap. i. 

such oflence, occupation, or forfeiture shall be void ; and all ^ L_!_ 

letters patent (k) made to occupy such office for term of years, 
for term of life, in fee simple or in fee tail, shall be void, any 
words or clause of non obstante put into such patent notwith- 
standing, and whosoever shall presume to take upon him to 
occupy the office of sheriff above one year, by virtue of such 
grant or patent, shall be disabled for ever after to be sheriff 
within any county of England ; and any man, who will, may 
sue for the said sum of 2001. so forfeited against such sheriff, 
under-sheriff, or sheriff's clerk, in any action of debt, in his 
own name, and the king shall have the one moiety of all that 
which is recovered, and he that sueth shall have the other 
moiety (/). By the statute of the 6 Hen. 8, c. 18, all persons 
inheritable to the office of sheriff in any county, and the sheriff, 
under-sheriff, and other officers in London and Bristol, are ex- 
cepted out of these statutes. And by other statutes (m) it is 
enacted, that every old sheriff of every county shall have full 
power, and naay occupy his office, as also do and execute every 
other thing to his office of a sheriff appertaining, during the 
terms of St. Michael and Hilary, (after the year that their office 
is ended,) unless before the same time he be lawfully dis- 
charged. 

The sheriff holds his office only during the queen's pleasure, office when 
although he cannot remain therein above one year ; and there- termineci. 
fore, during his year,' his office may be determined by the 
crown (n). The office is not determined by the sheriff be- 
coming a peer, but he continues sheriff notwithstanding (o). 
But the office of sheriff cannot be determined, nor any part 
thereof, by the crown, until a new sheriff is appointed. Although 
the queen may determine the office at her pleasure, yet she 
cannot determine it in part, as for one town or one hundred, 

(k) It is clear that the king might sheriff could not be continued in office 

have dispensed with these statutes; for more than one year at this day; 

but by the Bill of Rights, in this re- indeed, a few lines before Mr. Justice 

spect the prerogative was abrogated. Blackstone had shown how the pre- 

Mr. Justice Blackstone, in his Com- rogative had been abridged by tlie Bill 

mentaries, vol. i. p. 342, says, that of Rights. 2 Hawk. P. C. c. 37. 
it seems that the sheriff may be ap- (i) 23 Hen. 6,c. 8 ; 6 Hen. 6, c. 18. 

pointed durante bene placitn ; and so (?«) 12 Edw. 4, c. 1 ; 17 Edw. 4, 

was the form of the royal writ, as given c. 6 ; Cromp. 208 b. 
in Dalton, and of the warrant of ap- (n) Finch, 11. 

pointmentunder 3 & 4 Will. 4, c. 99, (o) Sir Lewis Mordaunt's case. 

Schedule, post, p. 16; and see 4 Cro. Eliz. 12. 
Rep. 32. It is apprehended that a 



O HOW LONG THE OFFICE CONTINUES. 

CHAP. I. or any other part ; neither can she abridge the sheriff of any 
. ^^^' ^' — thing incident or belonging to his office, for the office is entire 
and indivisible (/)). The office formerly determined by the 
death of the king or queen, but now, by the stat. 1 Anne, s. 1, 
c. 8, all officers appointed by the preceding king or queen may 
hold their offices for six months, unless sooner displaced by the 
successor. And also by the death of the sheriff himself the 
office is determined ; and, formerly, between the death of the 
old sheriff and the appointment of the new, the prisoners were 
in the custody of the law, and not of the under- sheriff; and the 
party had no remedy for an escape of a prisoner during that 
time (q) ; but now, by the stat. of 3 Geo. 1, c. 15, s. 8, where the 
sheriff dies before the determination of his office, it is enacted, 
" that the under-sheriff, or deputy sheriff, by him appointed, 
shall, nevertheless, continue in his office, and shall execute the 
same, and all things belonging thereunto, in the name of the 
deceased sheriff, until another sheriff be appointed for the said 
county, and sworn as directed ; and the said under-sheriff, or 
deputy-sheriff, shall be answerable for the execution of the said 
office in all things, and to all respects, intents and purposes 
whatsoever, during such interval as the high sheriff so deceased 
would by law have been, if he had been living ; and the security 
given to the high sheriff so deceased, by the said under-sheriff, 
and his pledges, shall stand and remain, and be a security to the 
king, his heirs and successors, and to all persons whatsoever, 
for such under-sheriff's due performance of his office during 
such interval." 
When she- Before the 3 & 4 Will. 4, c. 99, it was held, that until the writ 

ceasL'^oiT^' of discharge was delivered to the sheriff, he might lawfully 
arge. excrcisc the duties of his office (r). But if, after he had notice 
of his discharge, he made his warrant or precept to any of his 
late bailiffs or officers to arrest another, and the officer by force 
thereof arrested the party, an action of false imprisonment would 
lie against both the sheriff and the officer (s). The same law 
would probably now be held applicable, after the lapse of a rea- 

(p) Dalt. Sheriff, 6 ; Milton's case, cher v. Wiseman, Cro. Eliz. 440; 

4 Rep. 33; Norton v. Simmes, Hob. Dyer, 355, in marg. ; Dalt. 18. See 

13. also 12 Edw. 4, c. 1 ; 17 Edw. 4, 

(q) Westby's case, 3 Rep. 72 ; Cro. c. 6. 

Eliz. 366, S.C. See also 1 JMod 14. (s) Dyer, 41, 355, in marg. ; Dalt. 

()•) St. John's case, Moor. 186, 18. 
364; Fitz's case, Cro. Eliz. 12 ; Bou- 



HOW LONG THE OFFICE CONTINUES. J 

sonable time for completing the transfer under 3 & 4 Will. 4, chap. i. 

SECT. I. 

c. 99, s. 7. ■ 

The law relative to the transfer of process and prisoners by Transfer of 

the old to the new sheriff, and consequent discharge of the re- "'"'*' '^*^' 
sponsibility of the former, will be found in a subsequent chapter. 



Section IT. 
Sheriffs, how and when elected. 
Sheriffs were formerly chosen by the inhabitants of their re- How and 

.«,.,. , . , when electerl. 

spective counties ; in confirmation of which it was ordained by 
the statute of 28 Edw. 1, c. 8 and 13, that " the people should 
have the election of sheriffs in every shire, when the shrievalty 
is not of inheritance." For anciently, in some counties, the 
office of sheriff was hereditary ; as, at this day, the shrievalty 
of the county of Westmoreland is hereditary in the Earl of 
Thanet ; and also as the shrievalty of the county of Middlesex 
is vested in the city of London by charter («). But, by the 
statute of the 9th of Edw. 2, s. 2, this popular mode of election 
was done away ; for by that statute it was enacted, that " the 
sheriffs should thenceforth be chosen or assigned yearly by the 
chancellor, treasurer, and the judges ;" and the election is re- 
quired to be annually, on the morrow of All Souls, in the 
Exchequer (ii). The statute of Cambridge, 12 Rich. 2, c. 2, 
ordains, that the chancellor, treasurer, keeper of the privy seal, 
steward of the king's house, the king's chamberlain, clerk of the 
rolls, the justices of one bench and the other, the barons of the 
exchequer, and all other that shall be called to ordain, name, or 

(() Mr. Justice Blackstone, in his in the commons, but required the ro^al 

Commentaries, vol. i. p. 340, makes approbation. For in the Gothic con- 

the following observation on this an- stituiion the judges of the county 

cient mode of election : — " The rea- courts (which office is executed by the 

son of these popular elections is as- sheriff) were elected by the people, 

sigmd in the same statute, c. 13, but confirmed by the king ; and the 

' that the commons might choose such form of the election was thus ma- 

as would not be a burden to them.' naged : the people, or incoliE ierri' 

And herein appears plainly a strong torii, chose twelve electors, and they 

trace of the democratical part of our nominated three persons, ei quibus 

constitution; in whiih form of govern- rei uiium coujirmabat." Sliernh, de 

ment it is an indispensable requisite Jure Goth. I. 1, c. 3. 
• that the people should choose their (h) 9 Edw. 2, s. 2 ; 14 Edw. 3, 

own niagistrate«. 1 his election was c. 17; 23 Men. 6, c. 8. 
in all probability not absolutely vested 



1.0 



SHERIFFS, HOW AND WHEN ELECTED. 



CHAP, 

SECT. 



I. make justices of the peace, sheriffs, and other officers of the 
^ king, shall be sworn to act indifferently, and to appoint no man 



The king has 
no power to 
make a com- 
pulsory ap- 
pointment. 



that sueth, either privately or openly, to be put in office, but 
such only as they shall judge most sufficient (x). And the cus- 
tom now is (and has been, at least ever since the time of For- 
tescue, who was chief justice and chancellor to Henry the Sixth), 
that all the judges, together with the other great officers and 
privy councillors, meet in the Exchequer on the morrow of All 
Souls, yearly (which day is now altered to the morrow of St. 
Martin, by the last act for abbreviating Michaelmas term), and 
then and there the judges propose three persons, to be reported 
(if approved of) to the queen, who afterwards appoints one of 
them sheriff^?/). 

This mode of nominating three persons, from whom the queen 
is to choose one, is supposed by Blackstone to have originated 
in some statute which cannot now be found ; and he draws the 
conclusion, which is a very just one, from the entry in the 
council book, 3d March, 34 Hen. 6, which Lord Coke {z) says 
he copied from the council book with his own hand. The case 
was, that the king had, of his own authority, appointed a man 
sheriff of Lincolnshire, which office he refused to take upon 
bin) ; whereupon the opinions of the judges were taken, what 
should be done in this behalf. And the two chief justices. Sir 
John Fortescue and Sir John Prisot, delivered the unanimous 
opinion of them all : " that the king did an error when he made 
a person sheriff' that was not chosen and presented to him ac- 
cording to the statute; that the person refusing was liable to no 
fine for disobedience, as if he had been one of the three chosen 
according to the tenor of the statute ; that they would advise 
the king to have recourse to the three persons that were chosen 
according to the statute ; or that some other thrifty man be in- 
treated to occupy the office for this year ; and that the next 
year, in eschewing such inconveniences, the order of the statute 
in this behalf made be observed." 

This extract proves one thing, which the stat. 34 & S5 Hen. 8, 
c. 26, s. 61, expressly recognizes, that the king has no power to 
name any person to be sheriff' whom he pleases, unless such 
person is nominated in the usual way. But as long as the king 
was held to have (or rather before he was deprived of) the dis- 



(i") See also 5 & 6 Edvv. 6, c. 16. 

iy) 1 Bla. Com. 340 ; 24 Geo. 2, c. 48, 



c. 12. 



(:) 2 Inst. 559. 



SHERIFFS OF DURHAM, WESTMORELAND, &C. HOW ELECTED. 11 

pensing power, he was supposed to possess the prerogative of chap. i. 
naming whom he pleased to be sheriff. Although the practice ^^^^' "' 
of naming pocket-sheriffs has existed since the Revolution, yet 
no case of a compvdsory appointment has occurred. 

The sheriff of Durham, previously to the 6 & 7 Will. 4, c. 19, Sheriff of 
(by which the palatinate jurisdiction was transferred to the 
crown,) used to be appointed by the bishop during his pleasure. 
But since the passing of that act he is appointed by the crown. 

Formerly, the sheriffs of Welch counties were nominated Sheriffs of 
yearly by the lord president, council, and justices of Wales, the 
names of persons were certified by those officers, and one per- 
son was afterwards chosen and elected by the king, as other 
sheriffs ; but by the stat. of 1 W. & M. c. 27, s. 4, the nomi- 
nation of three proper persons to be sheriff of each of the Welch 
counties was vested in tlie justices of the great sessions, who 
were to certify the names of such persons to the privy council, 
crastino animarum, that the king might appoint out of them ; 
and by the 19th section of 11 Geo. 4 & 1 Will. 4, c. 70, (which 
abolishes the courts of great session,) this power has been vested 
in the judges of assize. 

By the Stat, 34 Hen. 8, c. 26, the sheriffs of Wales shall have 
full power within their sheriffwick to do as the sheriffs of 
England ; and shall accomplish and execute all the lawful com- 
mandments and precepts of the justices, &c., and of coroners, 
in all things appertaining to their offices and authorities. 

The shrievalty of Westmoreland is hereditary in the family Sheriff of 
of the Earl of Tlianet, and descends as well to females as to land. 
males, for Ann Countess of Pembroke exercised the office in 
person (a). 

There are also many cities and towns which by charter are Sheriffs of 

citiBs and 

counties of themselves, and had sheriffs even before the Muni- towns cor- 
cipal Corporation Act (5 Sc G Will. 4, c. 76). Thus the cities '""""''' 
of London (which is exempt from the operation of that act), 
York, Bristol, Coventry, Chester, Gloucester, Lincoln and Nor- 
wich are counties, and even before the Municipal Corporation 
Act had each two sheriffs ; and the cities of Canterbury, Exeter, 
Lichfield and Worcester, and the towns of Southampton, Kings- 
ton-upon-Hull, Nottingham, Poole, Newcastle-upon-Tyne, Car- 
marthen and Haverfordwest, are counties, and even before that 

(a) Harg. Co. Litt. 326. Cumberland is also said to be hereditary by a 
charter of King John ; Impey. 



SHERIFFS OF LONDON AND MIPDLESEX, 



CHAP. I. 
SliCT. II. 



Of the sheriffs 
of LonrloM 
and Middle- 
sex. 



act had each one sheriff. Since tlie Municipal Corporation Act 
the cities of Oxford and Berwick-upon-Tweed, as well as the 
above-named cities and towns, have been empowered by the 
61st section to elect sheriffs, through the municipal council, on 
the 1st of November in each year. But the sheriffs elected in 
pursuance of that act in places where previously there was no 
officer on whom the duty of sheriff devolved, have not, like the 
sheriffs of those cities and towns which formerly were and still 
are counties corporate, the execution of process, that duty still 
rests on the same shoulders as before the act passed (6). Within 
the limits of the counties corporate already enumerated, the 
duties of the shrievalty must be performed by their own she- 
riffs. 

The city of London claims by prescription the right to elect 
two sheriffs for the city (c). These are two officers, and are 
styled the sheriffs of London. And by a charter of Hen. 1, 
confirmed by King John, the shrievalty of Middlesex was 
granted to the citizens of London, with all customs belonging 
both within the city and without. The sheriffs of London are 
always sheriff^ of Middlesex ; but in Middlesex the two persons 
are styled sheriff; and although the same persons are sheriff of 
Middlesex and sheriffs of London, yet as sheriffs of London, on 
a writ directed to them, they have no authority to execute it in 
Middlesex, and so t converse {d). 
How elected. The qualifications for, and the exemptions from, the offices 
of sheriff of London and Middlesex, and also the mode of their 
election, are regulated by bye laws of the city. By one of 
which bye laws, an act of council, 7th of April, 1748, it is 
enacted that from thenceforth the right of election to the shrie- 
valties of London and Middlesex shall be vested in the livery- 
men of the several companies of the city, assembled in the 
Guildhall for that purpose ; the election to take place annually 
on the 24th day of June, unless that day be a Sunday, and then 
the day after ; and in case of vacancy, the lord mayor may 



(6) Granger v. Taunton, 3 Bing. 
N. C. 64; 5 Dowl, 190, S. C. 

(c) London had no .sheriffs in the 
13 Edw. 1 ; 1 Leon. 284. In Nicol 
V. Boyne, 2 Dowl. 761 ; 3 M. & S. 
812; 10 Bing. 339. S. C, Tindal, 
C. J., said, that London has two she- 
riffs by a gruiil of King John — ijiiicie. 

{(l) See Hammond v, Taylor, 3 



Bar. & Aid. 408. And a person in 
Wewgate, in custody of the sheriff of 
London, cannot be detained on a writ 
directed and delivered to the sheriff of 
Middlesex, for the prisons are several 
and distinct. 1 Roll. Abr. 894. As 
to improper direction of writs to these 
officers, see post, chap. 5, s. 1. 



HOW ELECTED. 



13 



appoint a day of election ; the new sheriffs are to take upon chap. r. 
them the office on the vigil of St. Michael, and to hold it until ^''"•"•- 
that time in the ensuing year. 

The lord mayor may nominate to the court of aldermen, By whom 

„ . , , i/>T • uominaled. 

between the 1 4th of April and the 14th of June \n every year, 
one or more fit persons, (not exceeding nine,) being free of the 
city, to be publicly put in nomination ; also any two or more 
liverymen at the day of election may nominate any freeman of 
the city as a proper person to be elected. 

Any person nominated by the lord mayor may discharge him- P".'e '"^^^^^^j 
self from such nomination, and the serving of the office of the office. 
sheriff" for ever, unless he become an alderman, by paying, after 
six days' notice, 400/. and twenty marks to the chamberlain, for 
certain purpose?: by that act of council declared ; and by another 
act of council, 11th of June, 1799, any person either elected or 
nominated may be discharged from such nomination or election, 
by making affidavit before the court of aldermen that he is not 
worth 20,000/. in lands, goods, and separate debts, supported 
also by the oatlis of six other citizens and freemen of the city 
that they believe his affidavit to be true. 

Sheriffs elect are to appear on the 14th of September after 
their election, before the court of aldermen, to enter into an 
obligation in the penal sum of 1000/. to the chamberlain of the 
city, conditioned to appear on Michaelmas day at the Guildhall, 
and to take upon them the oath (e) usually taken by the sheriffs 

(e) The oath to be taken by the out, well and lawfully ye shall keep 

sheriff's of London and Middlesex at and do to be kept, and the judgmenis 

Guildhall on Michaelmas day is as and executions of your court ye shall 

follows: "Ye shall swear, that ye not tarry without cause reasonable ; 

shall be good and true unto our sove- ne right shall you none disturb. The 

reign lady the queen of England, and writs that to you come touching the 

unto her heirs and successors ; and state and franchise of this city, you 

the franchise of the city of London, shall not return, till you have showed 

within and without, ye shall save and them to the mayor and the council 

maintain to your power ; and ye shall of tliis city for the time being, and of 

well and lawfully keep the shires of them had advisement, and ready you 

London and Middlesex ; and the offices shall be at reasonable warning of the 

that to the same shires appertain to mayor, for keeping of the peace, and 

be done, well and lawfully ye shall do maintaining the state of this city; 

after your wit and power; and right and all other things that longea to 

ye shall do, as well to poor as lich, your office, and the keeping of the 

and good custom ye shall not break, said shires, lawfully you shall do, by 

no evil custom arrere, and the assize you and yours ; and the city you shall 

bread, all and all other victuals within keep from harm after your power, and 

the franchise of this city, and with- the shire of Middlesex ; ne the gaol 



14 



SHERIFFS OF LONDON AND MIDDLESEX, HOW ELECTED. 



CHAP. I. 
SECT. II. 



Persons dis- 
qualilied. 



of London and Middlesex. And in case such sheriffs, elected 
at the general election day, do not appear on the 1 4th of Sep- 
tember to take the oath; or, if elected between the 14th and 
S^nd of September, do not take the oath on Michaelmas day ; 
or, if elected at any other period, do not within six days after 
notice of election take the oath, they are subject to a penalty, 
if an alderman of the city, or a commoner nominated by the 
lord mayor, of 600/.; or if any other freeman, of 400/. 

Any person who has paid the fine, unless he afterwards 
become an alderman, is exempt from serving the office ; and no 
person who has once served the office of sheriff of London, or 
sheriff of Middlesex, is again eligible. 



of Newgate you shall not let to farm. 
As help you God. 

Addition, 
Ye shall also swear that ye shall 
freely give all such rooms and offices 
of Serjeants and yeomen, as shall 
happen to become void during the 
time of ye shall remain in the office 
of sheriffalty, to such apt and able 
person and persons, as shall be by 
you nominated to the lord mayor and 
court of aldermen, and by Ihem ad- 



mitted, without any money or other 
reward to be had, taken or hoped for 
in respect thereof, according to the 
act of council made and provided in 
that behalf, the nine-and-tweutieth 
day of April, in the six-and-twentieth 
year of the reign of our sovereign 
lady Queen Elizabeth, &c. As help 
you God." The next day the sheriffs 
attend at the Exchequer before the 
cursilor baron, to be sworn, and to 
pay the fees, &c. 



( 15 ) 



CHAPTER II. 

OF THE WARRANT OF APPOINTMENT AND OATHS OF THE NEW 
SHERIFF ; AND THE TRANSFER OF THE OFFICE. 

Sect. I. — The Sheriff's Warrant of Appointment. 

II. — The Sheriff's Oath of Office, how and before whom 
taken. — The Declaration and Oaths at Sessions, when 
and how to he taken. 

III.— 0/ the Transfer of the Office.— Of the Assignment of 
Writs; of Prisoners. — When the Authority of the 
Sheriff ceases. — Of the Liabilities of the old Sheriff 
after expiration of his office. — Apportionment of Fees 
between the old and the new Sheriff on a Levari 
Facias, 



Section I. 

The Sheriff's Warrant of Appointment. 

Formerly sheriffs were appointed by patent, but their appoint- chap. ii. 
ment is now governed by the act of 3 & 4 Will. 4, c. 99 (a), ^ect^j^ 
which, after reciting, inter alia, that the appointment of sheriff's 
is attended with unnecessary expense, delay, and trouble, and 
partly repealing the acts of 3 Geo. 1, c. 15 and 16, proceeds to 
enact by the second section, 

" That from and after the passing of this act it shall not be sheriffs not 

/> 1 -rv 1 ^-rr- /• i 'i to sue out 

" necessary for any sheriff or sheriffs ot any county, city, or patent or pass 

" town in England or Wales to sue out any patent or writ of fxcMueV". 

•' assistance, or to make or pay proffers, nor shall any bailiff" or 

'« bailiff's of liberties in England or Wales be required to make 

*' or pay any proffers, nor shall he or they have any day of pre- 

" fixion, or be apposed, or take any oath or oaths before the 

" cursitor baron to account, or account or be cast out of court, 

(a) See Appendix. 



16 OF THE WARRANT OF APPOINTMENT. 



CHAP. It. " as now or heretofore in use in his majesty's Court of Ex- 
' " chequer, any law, statute, or usage to the contrary notwith- 

" standing." 
Appointment And the third section enacts, " that whenever any person 
it gjjaii be July pricked or nominated by his majesty for and to 
•' be sheriff of any county in England or Wales, except the 
" county palatine of Lancaster, the same shall be forthwith noti- 
" fied in the London Gazette, and a warrant in the form set forth 
" in the schedule to this act shall be forthwith made out and 
" signed by the clerk of the privy council, and transmitted by 
" him to the person so nominated and appointed sheriff as afore- 
" said ; and the appointment of sheriff thereby made shall be 
" as good, valid, and effectual in the law, to all intents and pur- 
" poses whatsoever, as if the same had been made by patent 
" under the great seal of Great Britain, or by any ways and 
" means heretofore in use ; and the sheriff and sheriffs so ap- 
" pointed as aforesaid shall thereupon, and upon taking the oath 
" of office hereafter mentioned, have and exercise all powers, 
" privileges, and authorities whatsoever usually exercised and 
" enjoyed by sheriffs of counties in England and Wales, without 
" any patent, writ of assistance, or other writ whatsoever, or 
" entering into any recognizance by himself or sureties, and 
" without payment of or being liable to pay any fees whatsoever 
" for the same." 
Clerk of And the fourth section enacts, " that a duplicate of the said 

duph^iate!""^" " Warrant shall, within ten days next after the date of the same 
" warrant, be transmitted by the said clerk of the privy council 
" to the clerk of the peace of the county for which such person 
" shall be nominated and appointed sheriff, to be by the said 
" clerk of the peace enrolled, and which he is hereby required 
" to enrol and keep without fee or reward." 

The form of the warrant is given by the schedule of the act, 
and is as follows : — 

" At the Court at , the Day of . Present, 

the Queen's most Excellent Majesty in Council. 
" To A. B. of, Sfc. 
*' Whereas her majesty was this day pleased, by and with the 
advice of her jnivy council, to nominate and appoint you for and 
to he sheriff of the county of during her viajesty's plea- 

sure : These are therefore to require you to take the custody and 



OF THE OATHS TO BE TAKEN BY THE SHERIFF. 17 

charge of the said county, and duly to 'perform the duties of sheriff chap. n. 

thereof during her majesty s pleasure; and whereof you are duly — — 

to answer according to law. 
^' Dated this day of 

*^ By her majesty's command, 
"CD." 



Section II. 

Of the Oaths of Office. 

The 3 & 4 Will. 4, c. 99, s. 6, enacts, " that each and every The oaths to 
person so appointed sheriff and under-sheriff as aforesaid, ex- ghehtfsl" ^ 
cept the sheriffs of London and Middlesex and their under- 
sheriffs, shall before he enter upon the execution of his office 
take the oath of office heretofore and now required bylaw, which 
oath shall be fairly written on parchment (without being subject 
to any stamp duty) and signed by him, and shall and may be 
sworn before the barons of his majesty's Exchequer or any of 
them, or any one of his majesty's justices of the peace for the 
county of which he shall be appointed sheriff or under-sheriff; 
and the same shall be thereupon transmitted to the clerk of the 
peace for the same county, who is hereby required to file the 
same among the records of liis office, and for which he shall be 
entitled to demand and have from such sheriff or under-sheriff 
the sum of five shillings and no more." 

The oaths required are in general the oaths of allegiance, su- 
premacy, and abjuration (6), or in case of a Roman Catholic, the 
oath prescribed by 10 Geo. 4, c. 7, which is substituted for the 
oaths of allegiance, supremacy, and abjuration, and in all cases the 
"oath of office" prescribed by the statute 3 Geo. 1, c. 15, s. 18, 
which is as follows : — 'I, A. B., do swear that I will well and truly 

* serve the queen's majesty in the office of sheriff of the county 

* of N., and promote her majesty's profit in all things that be- 

* long to my office as far as I legally can or may ; I will truly 

* preserve the queen's rights, and all that belongeth to the crown; 

(6) 13 & 14 Will. 3, c. 6; 1 Ann. slat. 1, c. 22; 4 Ann. c. 8; 1 Geo. 1, 
Stat, 2, c. 13, s. 2. 



18 



OF THE OATHS TO BE TAKEN BY THE SHERIFF. 



CHAP. II. 
SECT. II. 



Oaths taken 
by the sheriffs 
of Wales ; 



I will not assent to decrease, lessen or conceal the queen's 
rights, or the rights of her franchises ; and whensoever I shall 
have knowledge that the rights of the crown are concealed or 
withdrawn, be it in lands, rents or franchises, suits or ser- 
vices, or in any other nnatter or thing, I will do my utmost to 
make them be restored to the crown again ; and if I may not 
do it myself, I will certify and inform the queen thereof, or 
some of her judges ; I will not respite or delay to levy the 
queen's debts for any gift, promise, reward or favour, where I 
may raise the same without great grievance to the debtors ; 
I will do right as well to poor as to rich in all things belonging 
to my office ; I will do no wrong to any man, for any gift, 
reward or promise, nor for favour or hatred ; I will disturb 
no man's right, and will truly and faithfully acquit at the Ex- 
chequer all those of whom I shall receive any debts or duties 
belonging to the crown ; I will take nothing whereby the queen 
may lose, or whereby her right may be disturbed, injured or 
delayed ; 1 will truly return and truly serve all the queen's 
writs, according to the best of my skill and knowledge ; I will 
take no bailiffs into my service but such as I will answer for, 
and I will cause each of them to take such oaths as I do, 
in what belongeth to their business and occupation ; I will 
truly set and return reasonable and due issues of them that 
be within my bailiwick, according to their estates and circum- 
stances, and make due panels of persons able and sufficient 
and not suspected or procured, as is appointed by the statutes 
of this realm ; I have not sold or let to farm, or contracted 
for, nor have I granted or promised for reward or benefit, 
nor will I sell or let to farm, nor contract for or grant for 
reward or benefit, by myself or any other person for me or 
for my use, directly or indirectly, my sheriffwick or any baili- 
wick thereof, or any office belonging thereunto, or the profits 
of the same, to any person or persons whatsoever ; I will 
truly and diligently execute the good laws and statutes of this 
realm, and in all things well and truly behave myself in my 
office for the honour of the queen and the good of her subjects, 
and discharge the same according to the best of my skill and 
power. — So help me God." 

The sheriffs of Wales and Chester do not take the above-men- 
tioned oath, but take the accustomed oath which they formerly 



OF THE OATHS TO BE TAKEN BY THE SHERIFF. 19 

did, except the following words, " Ye shall be dwelling in your chap. n. 

own proper person within your bailiwick, for the time ye shall ! !_ 

continue in the same office, except ye be otherwise licensed by 
the queen," which words are now left out (c). 

The sheriffs of London and Middlesex, the county palatine of by the sheriffs 
Durham, the county of Westmorelcmd, and the sheriffs of cities Durham and 
and towns being counties of themselves, are to take the same oath land, 
before their entrance on the duties of their office, as the sheriffs 
of English counties, except that part that relates to the placing 
in or disposing of any of the offices of their under-sheriffs, 
county clerks, bailiffs, or other officers, or their continuance 
therein (rf). 

The sheriff may take the " oath of office" before the Court of Before whom 

•^ _ the oaths are 

Exchequer, or before a single baron of tliat court, or before any to be taken, 
justice of the peace for the county (e). This oath should be 
taken by the sheriff as soon as he receives his warrant, for until 
he be sworn he may not intermeddle, nor take upon him to use 
or exercise his office (e). And if he do so his acts as sheriff, 
(though perhaps not void as to third persons), would most pro- 
bably be held unauthorized and unjustifiable so far as regards 
his own protection, unless indeed they fall within the protection 
of an indemnity act (/). 

The oaths of allegiance, supremacy, and adjuration must be Oathofaiie- 
taken, made, and subscribed in one of the courts at Westmin- 
ster, or a court of quarter sessions for the county, and between 
nine and twelve in the forenoon, within six calendar months 
after appointment, under a penalty of 500/. and certain disabili- 
ties {g). In the case of a Roman Catholic, the oath prescribed 
by the 10 Geo. 4, c, 7, s. 6, is to be taken instead of the 
oaths of allegiance, supremacy and adjuration. That oath is as 
follows : 

' I, A. B., do sincerely promise and swear that I will be 

* faithful and bear true allegiance to her Majesty Queen Vic- 

• toria, and will defend her to the utmost of my power against 

(c) 3 Geo. 1, c. 15, s. 20. See c. 26, s. 3 ; 16 Geo. 2, c 30, s. 3. 

this oath. Appendix. The clerk of the peace administers the 

(rf) 3 Geo. 1, c. 15, s. 21. oath, and has them with the declara- 

(e) 3 & 4 Will. 4, e. 99, s. 6. tion ready ingrossed on a parchment 

(/) R. V. Parry, 14 East, 550; roll, for which the clerk of the peace 

Re Steavenson, 2 B. & C. 34. is entitled to a fee ; in some counties 

(g) 1 Geo. 4, Stat. 2, c. 13, s. 2 ; this fee is 2s. 

2 Geo. 2, c. 31, ss. 3, 4, 9 ; 9 Geo. 2, 

C 2 



20 



OF THE OATHS TO BE TAKEN BY THE SHERIFF. 



CHAP. II. 
SECT. II. 



Decl.iralion 
instead of 
sacrament. 



* all conspiracies and attempts whatever which shall be made 
' against her person, crown or dignity, and I will do my utmost 
' endeavours to declare and make known to her majesty, her 

* heirs and successors, all treasons and traitorous conspiracies 
' which may be formed against her or them : And I do faitli- 
' fully promise to maintain, support and defend to the utmost 
' of my power the succession of the crown, which succession, 

* by an act intituled ' An Act for the further Limitation of the 
' Crown, and better securing the Rights and Liberties of the 

* Subject,' is and stands limited to the Princess Sophia, Elec- 
' tress of Hanover, and the heirs of her body being Protestants, 

* hereby utterly renouncing and abjuring any obedience or alle- 

* giance unto any other person claiming or pretending a right to 
' the crown of this realm. And I do further declare, that it is 
' not an article of my faith, and that I do renounce, reject and 

* abjure the opinion that princes excommunicated or deprived 

* by the Pope, or any other authority of the see of Rome, may 
' be deposed or murdered by their subjects, or by any person 

* whatsoever : And I do declare, that I do not believe that the 
' Pope of Rome, or any other foreign prince, prelate, person, 

* state, or potentate, hath or ought to have any temporal or civil 
'jurisdiction, power, superiority or pre-eminence, directly or 
' indirectly, within this realm ; I do swear that I will defend 
' to the utmost of my power the settlement of property within 

* this realm, as established by the laws : And I do hereby dis- 

* claim, disavow and solemnly deny any intention to subvert the 

* present Church Establishment as settled by law within this 
' realm : And I do solemnly swear that I never will exercise 

* any privilege to which I am or may become entitled, to dis- 

* turb or weaken the Protestant religion or Protestant govern- 

* ment in the united kingdom: And I do solemnly in the 
' presence of God profess, testify and declare, that 1 do make 

* this declaration, and every part thereof, in the plain and ordi- 
' nary sense of the words of this oath, without any evasion, 
' equivocation or mental reservation whatsoever. — So help me 

* God: 

The sheriff of a county at large must also, within six months 
after his admittance into office (instead of taking the sacrament, 
which was formerly requisite (i)), make and subscribe in the 

(i) 25 Car. 2, c. 2, ss. 2, 3, 9. 



OF THE OATHS TO BE TAKEN BY THE SHERIFF. 21 

Court of Chancery, Queen's Bench, or Quarter Sessions of the chap. ii. 
county or place of his residence, the declaration required by ^^'^^' "' 
9 Geo. 4, c. 1 7, s. 5, which is as follows : 

' I, A. B., do solemnly and sincerely, in the presence of God, 

* profess, testify, and declare, u{)on the true faith of a Christian, 
' that I will never exercise any power, authority, or influence 

* which I may possess by virtue of the office of sheriff of , 

' to injure or weaken tlie Protestant Church as it is by law 
' established in England, or to disturb the said Church, or the 

* bishops and clergy of the said Church, in the possession of any 

* rights or privileges to which such Church, or the said bishops 
' and clergy, are or may be by law entitled.' 

But this declaration is not necessary in the case of a sheriff No deciara- 
of a city or town being a county of itself (^"). And indeed there county of 

, , . % r- citj or lown. 

seems to be nothmg now to prevent a member ot any or no 
religious persuasion from holding the office of sheriff in a city 
or town being a county of itself. 



Section III. 
Of the Transfer of the Office from the old to the new Sheriff. 

Before the 3 & 4 Will. 4, c. 99, the old sheriff, to exonerate 
himself from charge, was required, (by the statute 20 Geo. 2, 
c. 37,) " at the expiration of his office, to turn over to the suc- 
ceeding sheriff, by indenture and schedule, all such writs and 
process as remained in his hands unexecuted, who should duly 
execute and return the same." Also, after the new sheriff had 
taken the necessary oaths, and the writ of discharge (now abo- 
lished) had been delivered to the old sheriff, the new sheriff was 
to take an assignment from the old sheriff of all his prisoners 
which were in the gaol, by their names, by view and by inden- 
ture, to be made between the old and the new sheriff (A;). 

So that, before the 3 & 4 Will. 4, c. 99, the old sheriff was 

(./) 5 & 6 Will. 4, c. 28. to the coroner to put the sheriff ia 

(k) Dalt. 15. In the Register, 295, possession of the county gaol, after 

there is a writ commanding the old liearing divers counsel. Way 25, 29, 

sheriff to deliver to the new sheriff the and .Tuly 1, 11, 1696. Sheriff of 

gaol, &CC. by indenture. The Court Worcester. 

of Exchequer granted an injunction 



22 OF THE TRANSl'ER OF THE OFFICE. ■ 

CHAP. II. not discharged from liability, nor was any liability imposed upon 
^^^'^' "^' the new sheriff, until the former had received his writ of dis- 
charge, and had assigned over the process in his hands unexe- 
cuted, and prisoners in his custody, by indenture to the latter {I). 
Since the 3 & 4 Will. 4, c. 99, the writ of discharge and inden- 
ture of assignment are altogether unnecessary ; and the seventh 
section of that act enacts, 
Prisoners and " That every sheriff of any county, city, liberty, division, 
turned over town Corporate, or place, shall at the expiration of his office make 
of oftfcTto"" out and deliver to the new or incoming sheriff a true and correct 
sheriff!"^ ^'st and account under his hand of all prisoners in his custody, 
and of all writs and other process in his hands not wholly exe- 
cuted by him, with all such particulars as shall be necessary to 
explain to the said incoming sheriff the several matters intended 
to be transferred to him, and shall thereupon turn over and 
transfer to the care and custody of the said incoming sheriff all 
such prisoners, writs, and process, and all records, books, and 
matters appertaining to the said office of sheriff; and the said 
incoming sheriff shall thereupon sign and give a duplicate of 
such list and account to the sheriff going out of office, to whom 
the same shall be a good and sufficient discharge of and from all 
the prisoners therein mentioned and transferred to the said 
incoming sheriff, and the further charge of the execution of the 
writs, process, and other matters therein contained, without any 
writ of discharge, or other writ whatsoever ; and the said in- 
coming sheriff shall thereupon stand and be charged with the 
said prisoners, and also with the execution and care of the said 
writs, process, and other matters, contained in the said list and 
account, as fully and effectually as if the same writs and process 
had been turned over by indenture and schedule ; and in case 
any sheriff shall refuse or neglect at the expiration of his office 
to make out, sign and deliver such list and account as aforesaid, 
and to turn over the process aforesaid in manner aforesaid, every 
such sheriff so neglecting or refusing shall be liable to make 
such satisfaction by damages and costs to the party aggrieved as 
he, she, or they shall sustain by such neglect or refusal." 

This section, it is to be observed, only alters the mode in 
which the transfer is to be made by the old to the new sheriff. 
Under the former system, the old sheriff was discharged on 

(/) Davidson v. Seymour, Moo. & M. 34. 



TRANSFER OF PRISONERS AND PROCESS. 23 

receiving the writ of discharge, and executing the assignment chap. ir. 



SECT. HI. 



required by the 20 Geo. 2, c. 37. Under the present system, 
he is discharged on receiving from the new sheriff the duplicate 
list above mentioned. The law applicable to the former mode 
of discharge seems in most respects also applicable to the mode 
prescribed by 3 & 4 Will. 4, c. 99. 

As to the transfer of prisoners and process, the high sheriff Transfer and 

^ . '^ . ° , receipt of 

under the law as it stood previous to 3 & 4 Will. 4, c. 99, did not prisoners and 

in general receive the prisoners himself, but executed a letter 

of attorney, duly stamped, empowering the under sheriff, and 

others therein named, or any one of them, to receive the gaol, 

and execute a counterpart of the indenture of assignment, in 

which indenture there must have been specified, and distinctly 

set forth, all the detainers lodged against each prisoner. In case 

any cause was omitted, for such cause the prisoner was confined 

at the peril of the old sheriff (n). And if the old sheriff failed 

to mention in the assignment one of the prisoners, or omitted to 

mention one of several detainers against a prisoner, and the 

prisoner escaped, the old slieriff was liable to an action for an 

escape at the suit of the person whose suit was omitted (o). And 

on the same principle, the old sheriff would now be liable for 

omitting or insufficiently describing any prisoner or unexecuted 

writ in the list prescribed by the 3 & 4 Will. 4, c. 99, s. 7. It 

would seem that the doctrine formerly laid down in some cases, 

that if the old sheriff gave notice of the prisoners, and the causes 

of detention, by parol or by writing under his hand or under the 

hand of the under-sheriff, and not by indenture, it was sufficient 

provided the new sheriff did not object (p), (if it was ever good 

law, which there is strong reason to doubt (i^),) is at all events 

not applicable at the present day, and that, unless by adopting the 

mode pointed out by 3 & 4 Will. 4, c. 99, s. 7, the old sheriff 

cannot transfer his liability to his successor (?•)• It may be 

doubted whether in order to discharge the old sheriff, the dupli- 

(»i) Westby'scase, 3Rep. 72,S.C.; (p) Dall. 16; PouUer v. Green- 

Cro. Eliz. 365 ; Poph. 85. See also wood, Barnes, 367 ; Sir Thomas 

Chandler i'. Thompson, Hob. 266; Read's case, 2 Roll. Rep. 146. 

Egerton v. Morgan, 1 Bulstr. 70; (q) Davidson t>. Seymour, Moo. & 

Hanmerv. Winmer, 1 Sid. 335, S.C.; M. 34, and the learned note of the re- 

2 Keb. 2224 ; 2 Leon. 54 ; Noy, 51. porter. 

(o) SeecasesoHte, n. (n). And see (_>•) See Thomas v. Newnam, 2 

20 Geo. 2, c. 37. Dowl. N. S. 33. 



24 TRANSFER OF PRISONERS AND TROCESS. 



CHAP. II. 
SECT. III. 



cate list sliould not be signed by the new sheriflP himself (a), and 
not merely by the under-sheriff or other agent. 
Prisoners The new sheriff before 3 & t Will. 4, c. 99, was only bound 

transTerred.^ to receive the prisoners from the old sheriff at the county gaol, 
and in no other place (t) ; yet, if the old sheriff delivered, and 
his successor received the prisoners out of the gaol, the old 
sheriff was discharged by that delivery (t) ; and under the 3 & 
4 Will. 4, c. 99, s. 7, it would seem that the old sheriff is by the 
signature of the duplicate list discharged from future responsi- 
bility for prisoners in any place of lawful custody properly de- 
scribed in the list. 
Transfer in In case of the death of a sheriff, it is said that the new sheriff 

caae of dcalh. , i i • -i i • • rv • i 

is bound at his peril, as soon as he is sworn into ornce, without 
any delivery or notice, to take notice of the prisoners in 
the gaol, and of the causes of their commitment (u). In the 
meantime the under-sheriff of the former sheriff is responsi- 
ble («), and it may be doubted whether that responsibility does 
not continue until the prisoners have been duly transferred to the 
new sheriff. 
Trannferof Questions sometimes arise as to the stages at which process 

executed. may be transferred to the new sheriff, and at which the old 
sheriff is bound to complete its execution. With reference to 
this question it is observable, that the words of the act now in 
force, 3 & 4 Will. 4, c. 99, s. 7, are somewhat different from 
those of the former act, 20 Geo. 2, c. 37, s. 1. The 20 Geo. 2 
directs the sheriffs, at the expiration of their office, " to turn over 
to the succeeding sheriffs all such writs and process as shall re- 
main in their hands unexecuted, who shall duly execute and 
return the same." The words of 3 & 4 Will. 4, are, " all writs 
and other process in his hands not wholly executed.'' While the 
former act was in force, the construction put upon the word 
" unexecuted " seems to have been " wholly unexecuted ;" and 
therefore before 3 & 4 Will. 4, c. 99, if a sheriff had commenced 
the execution of a writ, as of a fieri facias by seizure, he was 
bound to complete it, and might have proceeded to sell the goods 

(s) See Hyde v. Johnson, 2 Bing. Fitz. Attorney, 61. 
N. C. 776, on the construction of a («) Westby's case, 3 Rep. 72 b, 

statute similarly worded. S. C. ; Cro. Eliz. 366; Dall. 17. 

(t) Dalt. 16, cit. 11 Rich. 2; (i) 3 Geo. 1, c. 15, s. 8. 



TRANSFER OF PRISONERS AND PROCESS. 



25 



without waiting for a vendkioni exponas (?/), and might be com- chap. n. 

SECT* III* 

pelled to sell them by a distringas nuper vicecomitem {z). 'Jlie 

present act, on the first impression, seems hardly susceptible of 
this construction, though there is a dictum attributed to Parke, B., 
in one report of Yaroth v. Hopkins (a), " that if the old sheriff 
had seized he must have gone on with the execution." And 
where the sheriff has seized and sold under af.fa., and nothing 
remains to be done but to hand over the proceeds to the execu- 
tion creditor, the writ must be considered as wholly executed, 
and ouglit not to be transferred to the incoming sheriff (6). Nor 
can any liability be imposed upon the new sheriff by the at- 
tempted transfer of such a writ, even though he employ the 
same under-sheriff (6). 

All writs not executed by the old sheriff, and not returnable, or theiiabi- 
it is of course the duty of the new sheriff to execute. And if a old sheriff to 

. 1 • 1 1 1 1 -rt- /• j-rr return process 

capias be returned non est inventus by both snentts tor dinerent after expira- 

portions of time, if the new sheriff has been guilty of negligence 

in the execution of the writ, he alone is liable to an action (c). 

To all writs executed by the late sheriff, he is the proper person 

to make the return (d) ; and a return by the new sheriff of cepi 

corpus of a defendant who has never been in his custody, to 

a writ executed by the old sheriff, is bad (e). The courts will 

order the old sheriff to amend his return if it be erroneous (/). 

The old sheriff when he goes out of office should hand over the 

writs executed by him to the new sheriff, who should return the 

writ with the old sheriff's return thereon, and that he received 

the writ as above endorsed from his predecessor (g^). The old 

sheriff may be ruled to return any writ executed by him when ^ 

in office, and would be liable to an attachment for not complying 

with the rule (/<). But the sheriff is not in general liable to be 

(y) Ayre v. Aden. Cro. Jac. 73; (h) Harrison v. Paynter, 6 M. & 

1 Roll. Abr. 893 ; Doe dem. Stevens W. 387. 

v.Donston, 1 Bar,& Aid. 230; Yelv. (c) See Fonseck v. Magnay, 6 

44, contra. Taunt. 231 ; 1 Warsh, 554, S.C. 

(j) Cleik V. Withers, 6 Mod. 299 ; (d) Wesiby's case, 3 Rep. 72. 

2 Lord Raym. 1074, S. C. And see (e) Hex v. Sheriff of Middlesex, 
•post, chap. 1 1, s. 4. 4 East, 604. 

(o) 3 Dowl. 711. The report of (/)Dalt. 19. 

the same case, under the name of (g) 2 Roll. Abr. 457 ; Dalt. 516; 

Yrath v. Hopkins, 2 C. M. & R. 250, 1 Bulstr. 70. 

gives the supposed dictum merely in (/t) Rex v. Adderley, Doug. 464. 

the shape of a question thrown out by See also Rex v. Sheriff of Middlesex, 

thelearned judgeduring theaigument. 4 East, 604. 



20 APPORTIONMENT OF FEES. 



CHAP. II. called on to return any writ executed by him, unless ruled within 
^^"'^•"'' six lunar (i) months from the expiration of his office (/c) ; and 
although it has been intimated that a sheriff might be called 
upon to return the writ after that time under peculiar circum- 
stances (Z), yet it will be found difficult to carry out such inti- 
mation without overruling the statute of 20 Geo. 2, c. 37. 
Apporiion- gy {[^q statute 3 Geo. I.e. 15, s. 9, it is enacted, that when 

meiit of (ecs •' 

onExchequer any sheriff shall, by process out of the Exchequer, seize or 
extend any goods, chattels or personal estate, into the hands 
of his majesty, &c. for any debts or duties due to the crown, 
and shall die or be superseded before a venditioni exponas be 
awarded for sale, or before he has made any actual sale thereof, 
and a writ shall afterwards be awarded to a subsequent sheriff, 
who shall make sale of such goods, &c., the barons of the 
Exchequer, if sitting, or if not sitting, they or any one of them 
of the degree of the coif, shall settle the fees or poundage for 
such seizure or sale between such preceding and subsequent 
sheriff, with regard to the trouble each sheriff had in the exe- 
cution of such process. 

(i) Rex v. Adderley, Doug. 463, requested within that time is not suffi- 

note. cient, Rex v. Jones, 2 T. R. 1. 

(fc) 20 Geo. 2, c. 37. He must (/) Wilton v. Chambeis, 3 Dowl. 

be ruled within six months ; to be 333. 



( 27 ) 



CHAPTER III. 

OF THE sheriff's OFFICERS, THEIR APPOINTMENT, POWER, 
AND DUTIES. 

Sect. I. — The Sheriff not to let his Bailiwick to farm. — JVhat 
Officers he should aj^poiyit. — Offices not to be sold. — 
Replevin Clerks. — Clerk of the County Court. — 
Deputies. 

II. — The Undersheriff. — Whether he may be an Attorney, ^'C. 
— His Oaths, his Power, and Duties. — His Office how 
determined. — His Liabilities. — His Securities. — Du- 
ties on entering on his Office. 

III. — Bailiffs. — Perpetual Bailiffs. — Bound Bailiffs. — Special 
Bailiffs. — Authority and Duties of Bailiffs. — When 
the Sheriff is responsible for the Acts of his Bailiffs. 
— How punished. — Their Security to the Sheriff. 

IV. — Gaoler. — Sheriff's Jurisdiction over Gaols.- — Sheriff lia- 
ble for default of Gaoler. — Gaoler'' s Security to the 
Sheriff. — Regulations respecting Gaols. — Bonds to 
the Gaoler. — Of his Fees. 



Section I. 

Of the Sheriff's Officers. — Appointments in General. — Replevin 
Clerks, ^'c. 

By 4 Hen. 4, c. 5, and 23 Hen. 6, c. 9, it is enacted, " that no The sheriff ig 

I'/miiii /«• 1- 1 CI.- If" to le' his 

sheriff shall let to farm in any manner his county, nor any oi his bailiwick lo 
bailiwicks, hundreds, or wapentakes (a) ; and it has been resolved, '''"" ' 
that a lease thereof, though no rent was reserved, is within the 

(a) In Ellis v. Nelson, 3 Keb. 678, other provisions of the statute, it has 
this statute was held to be a private been decided to be a public statute, 
act} but in more recent cases, upon Samuel v. Evans, 2 T. 11. 569. 



28 OF THE SHERIFF S OFFICERS. 

CHAP. in. statute, the intent being that the sheriffs should keep their coun- 
^^^'^' ^' ties in their own hands (b). 
but may ap- This Statute does not prevent the sheriff from employing de- 
fie's^and o"- puties in the execution of the duties of his office ; indeed, by 
fo'bTap"!''*" several statutes, the sheriff is required to appoint an under- 
pointed, sheriff, and at least four replevin clerks. At the time the sheriff 
takes his oath of office, and thereby fully enters upon the duties 
thereof, he should execute the appointments of his officers ; and 
they, on the other hand, at the same time should be required to 
give security for the due and faithful execution of the duties of 
their respective offices. The under-sheriff should therefore 
have the appointments and the securities of himself, and of the 
other officers of the sheriff, ready to be executed when the oaths 
are taken ; the officers of the sheriff are his under-sheriff (c), 
bailiffs (t?), gaoler (e), replevin clerks (/), county clerks, and 
deputies, whose duties, appointments and liabilities will be treated 
of in this chapter. 
Offices ander By the Statute 3 Geo. 1, c. 15, s. 10, it is enacted, " that it 

the sherift'are ,,,,,-,, n i i. 11 

not to be shall not be lawful to or for any person whatsoever to buy, sell, 
sold! ' ""^ let, or take to farm, the office of under-sheriff, or deputy sheriff, 
seal keeper, county clerk, shire clerk, gaoler, bailiff, or any other 
person pertaining to the office of high sheriff of any county of 
England and Wales, or to contract, promise, or grant for money, 
or other reward or benefit, the said offices, or any of them ; 
nor to give, take, promise, or receive, any other considera- 
tion whatsoever for the said offices, or any of them, di- 
rectly or indirectly, by themselves, or any person in trust for 
them, or for their use, on a penalty of 500/., one half to the 
king, the other half to the informer ; the action for the same to 
be brought within two years. Provided that nothing in this act 
shall hinder any high sheriff from constituting and appointing 
an under-sheriff or deputy sheriff, as by law he may and ought 
to do; nor to hinder the under-sheriff, in case of the high she- 
riff's death, when he acts as high sheriff, from constituting a 
deputy, which he is thereby empowered to do ; nor to hinder, 

(h) 20 Hen. 7; 13 Dalt. 23; 21 office of bailiff, see the 3rd section of 

Hen. 7, 36. See also Plowd. 87 ; this ciiapter. 

Stockwiih I'. Nortiiy, Moor, 781. (e) See the 4th section of this 

(c) For the nature and duties of llie chapter, 

office of under-sheriff, see the 2nd ( _/' ) For the duties, &c., of these 

section of this chapter. officers, see the latter pait of this sec- 

{d) For the nature and duties of the tion. 



REPLEVIN CLERKS. 



29 



CHAP. III. 
SECT. I. 



prevent, or abridge such sheriff or under-sheriff, from demand- 
ing, taking, or receiving the lawful fees and perquisites of his 
office, or any place or appointment pertaining thereunto ; or for 
taking security for the due answering the same ; nor to hinder 
such under-sheriff, deputy sheriff, county clerk, &:c., or any 
person executing any office under the sheriff, from accounting 
to the high-sheriff for all such lawful fees as shall be by them 
taken or received in their offices, &c., nor for giving security so 
to do ; nor to hinder the high-sheriff from allowing such salary 
or recompence to his under-sheriff, county clerk, &c., or other 
officer, for the execution of the said offices, places, or employ- 
ments, or any of them, as to him shall seem meet ; nor to hinder 
or prevent the under-sheriff, &c., from taking or receiving such 
salary or recompence for his or their pains or services therein." 
But the sheriffs of London and Middlesex, and of Durham and 
Westmoreland, and of towns and cities being counties of them- 
selves, may notwithstanding this act dispose of the offices of 
under-sheriff, county clerk, bailiff, or other officer (g-). If the 
sheriff take a bond of his bailiff to pay 20d. for every defendant's 
name in every warrant on mesne process, it is not letting his 
sheriffwick to farm (/<). 

By the statute 1 & 2 Phil. & Mary, c. 12, s. 3, it is enacted, Replevin 

. . ... , clerks. 

•' that every sheriff of shires, not being cities or towns made 
shires, shall at his first county day, or within two months next 
after he hath received his patent of his office of sheriff, depute, 
appoint, and proclaim, in the shire town within his bailiwick, 
four deputies at the least, dwelling not above twelve miles distant 
from one another, which said deputies, so appointed and pro- 
claimed, shall have authority, in the sheriff's name, to make re- 
plevin and deliverance of such distresses, in such manner and 
form as the sheriff may and ought to do, upon pain that every 
sheriff, for every month he shall be without such deputy, shall 
forfeit 5/., one half to the king, and the other to the informer." 
It is usual to appoint more than four replevin clerks ; the 
appointment is given to attorneys in each of the places of any 
size in the county, and is usually made by letter of attorney 
under seal («). There must be some act of appointment ; for 

(g) 3 Geo. 1, c. 15, s. 21. minute in the county court book, at 

(Tt) Ballaatime v. Irwin, Fortes. tiie first county court; but the other 

368. raode of appointment by letter of at- 

(i) See form, Append. It would torney is the best. If the appointment 

be sulTicient however to make the ap- be by entry in the county court book, 

pointment of the replevin clerk by a it is as follows: — "The sheriff, by 



30 



OF THE SHERIFF S OFFICERS. 



CHAP. iir. where (/i-) a replevin was granted by a person who had acted for 

— — many years as clerk of replevins to several sheriff's, and had 

been recognized by the then sheriff* as such, but without any 
appointment in writing, the court granted a prohibition to 
restrain the sheriff" from proceeding in a suit granted by that 
person, he not being appointed to the office within the meaning 
of the above statute. The mode of granting replevins will be 
treated of in the chapter on the county court. A replevin clerk 
is not bound to make personal inquiries as to the responsibility 
of the sureties on granting a replevin ; if they be apparently re- 
sponsible at the time it is sufficient, for he will not be liable to 
an action at the suit of the sheriff", although they afterwards 
turn out to have been insolvent (/). But it seems, that, although 
the replevin clerk is not bound to go out of his office to make 
personal inquiries, still he is bound to exercise a reasonable 
discretion, and if the sureties be unknown to him he ought not 
to be satisfied with their own statements as to their solvency (»«). 
He, as well as the sheriff", is answerable to the defendant for the 
sufficiency of all and each of the pledges («). 

The office of county clerk, or clerk of the county court, is in 
the appointment of the sheriff"; it is not usual to appoint this 
officer (who is generally an attorney, residing at the county 
town) by letter of attorney, but by entry or minute on the pro- 
ceedings of tlie county court. In Mitton's case (o), it was re- 
solved, that a grant by Queen Elizabeth of the office of county 
clerk during the vacancy of the office of sheriff" was void, for the 
appointment belongs to the sheriff", the county court being the 
court of the sheriff*. Indeed it is optional in the sheriff" whether 
he will appoint a county clerk or not(o). 
A person to If the under-sheriff" reside at a distance from the town where 
county court, the county court is held, the sheriff" should depute some attorney 
of respectability at that place to hold the court for him, by letter 
of attorney under the official seal (p). 



The comity 
clerk. 



virtue of the statute in that behalf, did 
appoint A, B. of, &c., C. D. of, &c., 
E. F. of, &c„ G. H. of, &c., I. K. of, 
&c., to be his deputies for granting 
replevins within the said county." 

(7c) Griffiths v. Stephens, 1 Chit. 
Rep. 196 j see Brandon v. Hubbard, 
2 Brod. & Bing. 11. 

(l) Sutton t). Waite, 8 Moore, 27. 
See also Hindie v. Blades, 1 Marsh. 
27 ; S. C. 5 Taunt. 225. 

(m) Jefferies v. Bastard, 4 Ad. & 



Ell. 813 ; 6 Nev. & M. 303, S. C. 

(n) Page v. Earner, 1 B. & P. 378 ; 
Scott V. VVaithman, 3 Stark. 168. 

(o) 4 Rep. 33. See 9 & 10 Vict, 
c. 95, ss. 24 el seq , as to the appoint- 
ment and duties of clerks to the county 
courts establislied under that act. 

(p) See 9 & 10 Vict. c. 95, s. 9, 
et seq, as to the appointment, duties, 
&c. of judges of the county courts es- 
tablished under that act. 



DEPUTIES IN THE COURTS. 31 



By the statute 23 Hen. 6, c. 9, it is enacted, *' tliat every chap.hi. 
sheriff shall make yearly a deputy in the king's courts of his ^^"^' 

Chancery, King's Bench, Common Pleas, or Exchequer of Record, ^Jj[^j^jfj'^ ,,^' 

before they shall return any writs, to receive all manner of writs c.mhis at 

J J ' _ Westminster. 

and warrants to be delivered to them ;" and if any such sheriff 
shall do the contrary, he shall forfeit 40Z. (to the king and in- 
former) for every such default, and treble damages to the party 
grieved. And by 1 Edw. 6, c. 10, 5 Edw. 6, c. 26, and 31 Eliz. 
c. 9, similar provisions were made as to the twelve counties of 
Wales, and the counties palatine of Lancaster, Chester, and 
city of Chester. And by rules of the Court of King's Bench, 
Hil. 23 Car. 1, and E. 15 Car. 2, the sheriffs are enjoined to 
comply with the statute 23 Hen. 6, above mentioned ; and by 
tlie last of these rules, the sheriff's deputies are required " to 
give their personal attendance daily in Westminster Hall in term 
time, that so they may, with the more convenience, dispatch 
those services which appertain to their offices respectively" {(f). 
And by the rule of the Court of Common Pleas, each deputy, 
before Hilary term, shall have his name and place of residence, 
in London and Westminster, set and continued up in tables in 
the office of the prothonotary (r). By an order of the Court of 
Exchequer, the sheriff is to assign his attorney or deputy, and 
on giving his recognizance shall deliver to the clerk in the 
remembrancer's office, the name of the attorney or deputy so 
assigned (s). 

And now the 3 & 4 Will. 4, c. 42, s. 20, enacts, that " from 3 & 4 w. 4, 

c 42 s 20 

and after the 1st day of June, 1833, the sheriff of each county 
in England and Wales shall severally name a sufficient deputy, 
who shall be resident or have an office within one mile from the 
Inner Temple Hall, for the receipt of writs, granting warrants 
thereon, making returns thereto, and accepting of all rules and 
orders to be made on or touching the execution of any process 
or writ to be directed to such sheriff." 

Under the former enactments and rules it was usual to nomi- Deputy iden- 

•rvi 1 J 1 1 titled with 

nate the under-sheriff as the sheriff s deputy, and the under- sheriff. 
sheriff then appointed his agent in town, who performed the du- 

(9) I do not find that this rule has (s) Ord. & R. Exchequer. As to 
been altered, but it appears to be a the force of orders of the Court of Ex- 
dead leUer. chequer decreeing penalties, see 3 

(r) R. M. 1654, C. P. Geo. 1, c. 15, s. 15. 



32 OF THE SHERIFF S OFFICERS. 



SLCT. I. 



CHAP. III. ties. And the sheriff was held liable upon engagements made 
by an agent so appointed in the course of the office. But it was 
considered that he was not such a deputy as that notice served 
on him of a defendant being in the county into which the writ is 
issued, would be sufficient to fix the under-sheriff with know- 
ledge of that fact (t). Since the 3 & 4 Will. 4, c. 42, s. 20, it 
seems to be considered that the deputy is identified with the she- 
riff, and it has since that act been repeatedly held that a delivery 
of process to the deputy is equivalent to a delivery to the sheriff 
himself, so as to be binding from the moment of delivery (m). 



Section II. 
Of the Under-sheriff. 

Of the an- But, although by the statute 23 Hen. 6, c. 9, s. 1, the sheriff 

appointment is prohibited from assigning or letting to farm his bailiwick, we 
iU!ls"'"^"' have seen he is not compelled to perform the duty of his office 
in person. From the earliest time, the sheriff has always ap- 
pointed a deputy ; this deputy was formerly called the sub- 
vicecomes, seneschalus v'lce-comitis ; and in the statute of West- 
minster 2, c. 39, he is first called under-sheriff, by which name 
he is now styled (^ a;). Before 3 & 4 Will. 4, c. 99, the appoint- 
ment was usually made by deed, under the seal of office ; though 
an appointment by parol was sufficient (?/). The fifth section of 
that act directs, that every sheriff " shall within one calendar 
month after the notification of his appointment in the London 
Gazette, by writing wider his hand, nominate and appoint some 
fit and proper person to be his under-sheriff." 

The same section directs the sheriff to transmit to the clerk of 
the peace for the county, a duplicate of the appointment, which 
he is to file amongst the records of his office, on payment of a 
fee of five shillings. 

(<) Gibbon v, Coggon, 2 Camp. that he was formerly called shire 

188. clerk, but it is appreliended that this 

(m) Woodland d. Fuller, 11 Ad. & is, pjoperly speaking, clerk of the 

El. 859 ; Harris v. Lloyd, 5 M. & W. County Court, which offices, although 

432; Williams v. Waring, 4 Dowl. generally filled by the same person, 

200. aie not the same. 

(x) In 9 Rep. 40, Lord Coke says, {y) Dalton, 457; 22 Hen. 7, 6, 7. 



THE UNDER-SHERIFF. 



No Stamp is required on either the appointment or the diipli- chap. m. 

, . ^ Sl-CT. II. 

cate (2). 



There does not seem to be any particular quahfication re- Whether the 

, , . under-sherilT 

quired for the office of under-sheriff; in each county, at this may be an 
day, it is filled by some attorney of respectability. And the 
statute of 1 Hen. 5, c. 4, that " no under-sheriff or sheriff's 
officer shall practise as an attorney during the time he continues 
in office," has been repealed by 7 Will. 4 & 1 Vict. c. 55. It 
is however provided by a rule of Q. B. 1654, s. 1, " no under- 
sheriff, or bailiff of sheriffs or liberties, be admitted, during such 
their employment, to practise as attornies, under pain of expul- 
sion from the employment of an attorney, and not to be re-ad- 
mitted." But inasmuch as that rule was made while the statute 
of 1 Hen. 5, c. 4, was in force, it is probable that it was founded 
on a desire to carry out that statute, since the repeal of which, 
therefore, it may be doubted whether the rule is in force or 
whether at this day there is any legal objection to the filling the 
office of under-sheriff by an attorney («). 

Bv the statute 22 Geo, 2, c. 46, s. 14, "no under-sheriff, or Practising at 

J quarter ses- 

his deputy, shall act as a solicitor, attorney or agent, or sue out sious. 
any process, at any general or quarter sef>sions of the peace to be 
held for any place where he shall execute his office, upon pain 
of forfeiture of 50/."; and this enactment remains unrepealed (6). 

Formerly by several statutes (c), no under-sheriff, or sheriff's May be in 

. „ office more 

clerk, should abide or tarry in his office above one year, upon ihanayear. 
pain to forfeit 200/. yearly, so long as such person should oc- 
cupy such office contrary to the effect of those statutes, and 
every man that would, might sue for the same" (d). But the 
under-sheriff, and all other officers in the city of London and 
Brislo], and of all other counties in which anypersons were inherit- 
able at the time of making the statute (e), were excepted out of 

(s) 3 & 4^Vill. 4, c. 99, s.5. continual being and continuing in tiie 

(a) See Cox i'. Balne, 2 Dowl. & said offices, the under-sheriffs and 
L. 720. slierlffs' cleri<s, and bailiffs, have 

(b) See Faulkner r. Chevell, 5 A. grown so cunning in liieir several 
& P:. 213 ; Briggs v. Sowton, 9 Dowl. places, as that they are able to deceive, 
105. and may well he f'eaied that many of 

(c) 42 Edw, 3, c. 9; 23 Hen. fi, them do deceive, both the king, their 
c. 8; 6 Hen. 8, c. 18; Dallon (p. sheriff, and county." 

454) says, "that under-sheriffs and (<0 See Barrett i. Johnson, 2 Jones 

sheriffs' cleiks, in many places, also, Hep. Exch. Ir. 297. 

do continue in their said olHces many (e) 23 Hen. 6, c. 3. These are 

years together, interchanging from one Middlesev, Durham, and Weslmore- 

into the other ; by leason of which land. 



84 OF THE sheriff's OFFICERS. 

CHAP. III. the statute. And now, since 7 Will. 4 & 1 Vict. c. 55, s. 1, has 

^'^"^•"' repealed so much of the 42 Edvv. 3, c. 9, "as relates to the 

time during which under-sheriffs and sheriffs' clerks may abide 

in their respective offices," it seems there is no limit to the time 

for which the office may be held. 

Oaiiis (o be Before the statute 27 Eliz. c. 2, the under-sheriff did not take 

takin by i n i i i i -n- • i ■ i 

iinder-.-iie- any oath, but by that statute an under-snenrr is subjected to 
the penalty of 40/., (one half to the queen, the other half to the 
informer,) for executing the duties of his office without taking 
the oath of supremacy ; and by subsequent statutes, the under- 
sheriff was directed to take the oaths of allegiance, supremacy, 
and abjuration, and receive the sacrament and subscribe the 
declaration against transubstantiation, within the same time, in 
the same manner as the sheriff. But, as before observed in 
treating of the oaths of the sheriff himself, a declaration has, by 
9 Geo. 4, c. 17, been substituted for taking the sacrament; and 
by 10 Geo. 4, c. 7j declarations against transubstantiation were 
abolished. So that the only oath now required, in additon to 
those of allegiance, supremacy, and abjuration, or that substi- 
tuted in case of Roman Catholics by 10 Geo. 4, c. 7, is that 
prescribed by the statute 3 Geo, 1, c. 15, s. 19, which enacts 
that the under-sheriff of all counties of South Britain, except 
the counties of Wales and Chester, shall take the following 
oath (at the same time, and before the same persons, as the 
sheriff) (/) ; viz. : 

' 1, A. B., do swear, that I will well and truly serve the queen's 
' majesty in the office of under-sheriff in the county of N., and 
' proinote her majesty's profit in all things that belong to the 
' said office, as far as I legally can or may ; I will preserve the 
' queen's rights, and all that belongeth to the crown ; I will not 

* assent to decrease^ lessen, or conceal the queen's rights, or the 
' rights of her franchises ; and whensoever I shall have know- 
' ledge that the rights of the crown are concealed or withdrawn, 
' be it in lands, rents, franchises, suits or services, or in any 
' other matter or thing, I will do my utmost to make them be 

* restored to the crown again ; and if I may not do it of myself, 
' I will certify and inform some of her majesty's judges thereof: 
' I will not respite or delay to levy the queen's debts for any 
' gift, promise, reward, or favour, when I may raise the same 

* without great grievance to the debtors ; I will do right as well 

(/) For the mode of administering the oaths, see ante, p. 19. 



THE UNDER-SHERIFF. 35 

' to poor as to rich, in all things belonging to ray office ; I will chap. in. 
' do no wrong to any man for any gift, reward, or promise, nor ^' ^'^^•"' 
' for favour or hatred ; I will disturb no man's right, and will 

* truly and faithfully acquit at the Exchequer all those of whom 
' I shall receive any debt, duties, or sums of money belonging 
' to the crown ; I will take nothing whereby the queen may lose, 

* or whereby her rights may be disturbed, injured, or delayed ; 

* I will truly return, and truly serve, all the queen's writs, to the 

* best of my skill and knowledge ; I will truly set and return 
' reasonable and due issues of them that be within my bailiwick, 
' according to their estates and circumstances, and make due 

* panels of persons able and sufficient, and not suspected, or 
' procured, as is appointed by the statutes of this realm ; / have 

* 7iot bought, 2yurchased, or taken to farm, or contracted for, nor 
' have I given or promised any consideration, nor will I buy, ptir- 

* chase, or take to farm, or contract for, promise, or give any con- 
' sideration whatsoever, by myself or any other person for me, or 
'for my use, directly or indirectly, or any person or ptersons what- 
' soever, for the office of the under-sheriff of the county ofN., which 
' / am now to enter upon and enjoy, nor for the profits of the same, 

* nor for any bailinnck thereof, or any other place or office bclong- 
' ing thereunto; I have not sold nor contracted for, or let to farm, 

* nor have I granted or promised, for reward or benefit, by myself 
' or any other person for me, or for my use, directly or indirectly, 
' any bailiwich thereof, or any other place or office belonging there- 
' unto(g) ; I will truly and diligently execute the good laws and 

* statutes of this realm, and in all things well and truly behave 

* myself in my said office for her majesty's advantage, and for 
' the good of her subjects, and discharge my whole duty to the 
' best of my skill and power. So help me God.' 

There is an indemnity act passed annually to protect persons 
who have omitted to take the oaths of allegiance, Sec, and it lias 
been lately determined (A), that this indemnity act extends as 
well to those persons who have made default in not taking the 
oath, although not at that time liable to the penalties, as to those 
who have incurred the penalty for not taking the oaths. 

(g) These woids in italics aie all cities and towns being counties of 

omitted in the oath of the under- themselves; 3 Geo, 1, c. 15, s. 21. 

sheriffs of London and Middlesex, (h) In the matter of Stevenson and 

Durham, and Westmoreland, and of others, 2 Bar. &; Cres. 34. 



36 



OF THE SHERIFF S OFFTCEUS. 



CIIAI'. III. 
SECT. H. 

The power 
an J Hilly ot 
Ihe nnrifi- 
sherili. 



Ads to be it 
the name ul' 
llie sheriff. 



'I'lie sherift', in making an under-sheriff, docs implicitly give 
liim power to execute the ordinary and ministerial offices of the 
sherift" himself that may be transferred by law ; as serving of 
process and executions, making returns, and the like J) ; but 
the judicial acts of the sheriff cannot be delegated to the under- 
sherif!"; as to deal in writ of redisseisin, for in that the sheriff is 
judge (j); nor in the case of a writ of inquiry of waste, where 
the sheriff is commanded to go to the place wasted, because it 
is personal unto the sheriff himself (/c). So in a writ of partition, 
the sheriff must execute it in person, and cannot delegate it to 
the under-sheriff^/). So in a writ of advancement of dower or 
pasture, unless they are removed into C. B., the sheriff cannot 
delegate his authority (m). And although the sheriff may do the 
whole duty of his office in person, yet he cannot make an under- 
sheriff for executing part of the duty of the office, and reserve 
the residue to himself(«). Therefore it was decided, that a 
covenant by the under-sheriff that he would not make execu- 
tions above 20/., before he had first made known the nature and 
quality of the writ to the sheriff, and without the special warrant 
of the sheriff, was void and illegal ; and in an action against the 
under-sheriff on this obligation, notwithstanding such proviso, 
the under-sheriff was held to be liable thereon, for allowing a 
prisoner, arrested on a writ above 40/., to escape (o). Where 
the sheriff appointed two under-sheriffs extraordinary to hold an 
inquest, the court, for tiiat reason, set the inquisition aside, as 
the under-sheriff was the proper person to hold the inquest (p). 

At this day, all the office and duty of sheriff is transacted by 



(i) iVoiton V. Simes, Hob. 13; 9 
Edw. 4, c. 31, 32 ; Levett r. Fartar, 
Cro. Eliz. 294. See also 1 Roll Rep. 
274. 

(j) 11 Hen. 4. c. 7 ; 6 Rep. 12; 
Norton v. Simes, Hob. 13. And see 
of the writ de nativo habendo, Fitz. 
Relorn, 32 ; Bro. Offices, 36. These 
cases are lelained as iUustralions, not- 
withstanding the abolition of real ac- 
tions by 3 i 4 Will. 4, c. 27, s. 36. 
Tiiere are iiowever cases in which real 
actions may still be brought; see Doe 
d. Gilbert v. Ross, 7 M. & W. 102. 

{k) Norton v. Simes, Hob. 13; Cro. 
Eliz. 10, club.; Darell v. Waburne, 
Dyer, 204 a : Warnel'oid v Haddock, 
Cro. Eliz. 290, cniilia- -\'or it is only 
form. In the cases where the shf rirt' 
ought to execute liis duty in person, if 



the sheriff in such writ returnelh that 
he was tiiere in proper person, and this 
return be received, and the writ filed, 
then the court cannot examine it ; for 
the return is good, and the party can 
have no averment against the return, 
nor can lie have eiror; Clay's case, 
Cro. Eliz c. 10; Dalt. 34. 

(/) Clay's case, Cro. Eliz. 10. 

(m) F. N.B.I 48; Dalt. 34; Noy, 
21. 

(//) Boucher r. Wiseman, Cro. Eliz. 
440 ; see also 2 Brownl. 281. 

(o) Norton v. Simes, Hob. 13 ; 
Boucher i>. Wiseman, Cro. Eliz. 440 ; 
Chamberlain v. Goldsmith, 2 Biownl. 
280. See also 12 Mod. 468 ; Moore, 
85, pi. 175; Noy, 51 ; Holt, 157. 

(p) Denny i'. Trapnell, 2 Wils, 
378. 



THE UNDER-SHERUlr. 



37 



the under-sheriff, who, however, is only a deputy, and therefore cii.ap. m. 
all his acts must be done in the name of the sheriff; as is said ^^ '- — '~ 



in the Year Book, 20 Hen. 7, 12 6, that the under-sheriff is one 
that occupieth the place or office in the right of the high sheriff, 
and doth all things in the name of the high sheriff. And upon 
every writ or process delivered to the under-sheriff, he, as well 
as the high sheriff, may, by warrant in writing, command the 
bailiffs to execute such writ or process ; but it must be done in 
the high sheriff's name (q). The under-sheriff, without express 
authority from the high sheriff, may raise the posse comitatus (r). 
So a return made by the under-sheriff cannot be disavowed by 
the high sheriff, if he have made him his under-sheriff (s). And 
in a recent case, on proving a deed under the official seal of the 
sheriff, executed by the under-sheriff, it was held not to be 
necessary to prove the authority of the under-sheriff so to do ; 
proof that he acted as under-sheriff was sufficient; for the 
under-sheriff, rirtule officii, has authority to do all official acts(<). 
It was formerly held, that although the acts of the under-sheriff 
were binding on the sheriff, and valid ; yet that the assignment 
of bail bonds, or the like, by the clerk employed in the sheriff's 
office, was not sufficient (u) ; but it is now holden, that an assign- 
ment of a bail bond or return made in the sheriff's name, by a 
person generally employed in the sheriff's office, is valid and 
binding on the sheriff(i;). The under-sheriff, however, cannot 
appoint a deputy to execute a writ of trial (?;'). 

The under-sheriff has no estate or interest in his office (a-); h..w ihc 

, , . , 1 1 •/!• Ml 1 "rticf ot tin- 

tor the sheritt can only appomt tlie under-sherili at will, as the ,kt si.crin 

under-sheriff is in effect but the sheriff's deputy; and, there- (erniinc<i.^" 
fore, according to the nature of a deputation, must be remov- 
able, as an attorney is ; so tliat if the sheriff should express 
that the appointment should be irrevocable, yet he may remove 
him; for it is said to be necessary, both for the public service 
and for the indemnity of the sheriff, that he be removable (?/). 
Of course the under-sheriff's power and authority determine on 
the sheriff's discharge. Formerly by the death of the sheriff 

(</) Dail. 103. Ci) Francis y. Neave, 6 J. B.Moore, 

(r) Dalt. 104. 120 ; S. C. 3 Brod. & Ring. 26 ; Bac. 

(s) 16 Hen. 4, 7, 6 ; 9 Rep. 3. Abr. tit. Sheriff {H.) 3. 

(0 Doe (/. James r. Brawn, 5 Bar. (w) Jones v. Williams, 7 Dowl. 

& Aid. 243. 938. 

(■») Kidson v. Fagg, 1 Sir. 60; (;i) Parker i'. Kelt, Salk. 95. 

S. C. 10 Mod. 288. (ii) Norton v. Simes, Hob. 13. 



OF THE SHERIFF S OFFICERS. 



CHAP. 111. 
SFCT. II. 



(luring his shrievalty, the authority of the under-sheriff was 
determined; but, by the statute 3 Geo. 1, c. 15, s. 8, it was 
enacted, " that if any sheriff shall die before the expiration of 
his year, or before he be superseded, the under-sheriff, or deputy 
sheriff, shall nevertheless continue in his office, and execute the 
same in the name of the deceased sheriff, till another sheriff be 
appointed and sworn; and the under-sheriff shall be answerable 
for the execution of the office during such interval, as the high 
sheriff' would have been ; and the security given by the sheriff 
and his pledges shall stand a security to the king, and all persons 
whatsoever, for the due performance of his office during such 
interval." The courts will not grant a rule absolute for an 
attachment for not bringing in the body, in the first instance, 
against an under-sheriff, where the sheriff has died during the 
year (?/) ; nor does it appear to be settled, whether or not the 
under-sheriff would be liable to be attached for not bringing in 
the body after the death of the sheriff, where the sheriff in his 
lifetime had returned cepi corpus [z). 

If the return to a writ be false, or there be any neglect of 
duty by the under-sheriff or bailiffs, the sheriff is alone respon- 
sible to the party injured; attachments are always granted 
against the sheriff, and not against the under-sheriff; so no 
action will lie against the under-sheriff for any default in him, 
but the sheriff is answerable, and the default is a naatter to be 
settled between the sheriff and under-sheriff(«). But the sheriff 
is not answerable criminally for the acts of the under-sheriff un- 
sanctioned by him {b). 
The security Dalton recommended sheriffs to keep their office in their own 
fi'n^er.sheriff, houscs, in Order to prevent themselves from being injured by 
mulrdo/o'ii their under-sheriffs, which recommendation has been long un- 
ment^'"""'' attended to; the sheriff, however, should take security from the 
under-sheriff to save himself harmless. It seems extraordinary 
that it should for a long time be made a question, whether or 
not covenants from the under-sheriff to the sheriff for duly exe- 
cuting the office were void by the statute of 23 Hen. 6, c. 9: 



Sheriff's !ia- 
bliily lor his 



(y) Anon. 2 Chit. Rep. 389. 

(s) Id. ibid. 

(a) Cameron v. Reynolds, Cowp. 
Rep. 406. See also 2 Hhi. Rep. 832; 
3 VVils. 314; Dougl. 40. Sed vide 
Cas. in B. R. 454, cited in Bac Abr. 
aheriff ( H.) 3. A nd qiim-e, whether 
an action for a false lelurn may not be 



brought against the under-sheriff. In 
Ireland all actions may, by express 
enactment, 57 Geo. 3, c. 68, s. 3, be 
brought against the under-sheriff, 
unless for the immediate act of the 
sheriff. 

{!)). Latch. 187. 



THE UNDER-SHERIFF. 3! 

the legality of such securities is now clearly established (c). But chap. m. 
any covenant, or proviso, excepting or reserving any part of the ^^"' "• 
office, in the security from the under-sheriff to the sheriff, is 
void and contrary to law; though such exception does not make 
the security void in foto{d). The under-sheriff frequently finds 
sureties to join with him in indemnifying the sheriff, but it is 
optional with the sheriff whether he will take the security of the 
under-sheriff alone or not. The form and extent of the terms 
of the under-sheriff's bond are nearly the same in all counties, 
the under-sheriff covenanting for the performance of all the 
duties of the office ; a form thereof will be found in the Ap- 
pendix. The under-sheriff should have his security ready, and 
execute it, with his sureties, if any, at the time that he and the 
sheriff take the oaths of office, at which time it is usual for the 
sheriff to execute the appointment of the under-sheriff (e). 



b»ilitt'8. 



Section III. 
Of the Bailiffs. 

The sheriff's officers, called bailiffs, are of three kinds. The Perpetual 
first, perpetual bailiffs, or bailiffs in fee, who have by charter or 
prescription the execution of writs within the guildable (/). 
These bailiffs are different from baihffs of franchises, for per- 
petual bailiffs of the guildable have not the return of writs, but 
the sheriff must make the return of a writ executed by such 
bailiffs (g-). 

Secondly, common bailiffs, (called, in the old books, bailiffs Bound 
errant), who are also called bound bailiifs. Tliese are the or- 
dinary officers of the sheriff, and are bound in an obligation 
with sureties for the faithful discharge of the duties which they 
are appointed to perform (A). In Cumberland (i) and in Corn- 

(c) Cartwrightv.Dalesworth, Moor, charges, est appel leguildable ; et si us- 
542. See also Norton v. Simes, Hob. cnn special tihertu la soit, ceo est apitel 
13; Bac. Abr. 67ie)/^' (H.) 2. le franchise.'' " Et cen parol gnilde, 

(d) Sir Daniel Ivlorton v. Simes, est un brotherhood, society, ou company 
Hob. 13; Boucher v. Wiseman, Cro. incorporate." 
Eliz. 440. (g) Dalt. 185, 187. 

(e) Ante, 32. (/i) See form of a bailiff's obligation, 
(/) Dalton distinguishes thegi(i7rf- post. Append. 

able from dL franchise thus, " liel part (02 Bla. Rep. 952 ; Taylor i-. Ri- 

Ael county ijue est contrihntary inter chardson, 8 T. H. 505. In Higgins 
eux mesmes, a payer tribute ou common v. IM'Adam, 3 Y. ifc J. 3, it is said 



40 OF THE SIIKRIFF's OFFICERS. 

CHAP. 111. wall (/,") it would appear there are no boiuul bailiffs. In ob- 
''^^'^' '"• serving upon the slierid' of Cumberland iiaving no bound bailiffs, 
Lord Kenyon, C. J., is reported to liavc said, " What protection 
the sheriff of Ciniiberland lias in cases of this kind that other 
sheriffs have not, it is not necessary to inquire in this case; but, 
though he may not have bound bailiffs, he may perhaps learn, 
whenever the question arises, that he is bound, like all other 
sheriffs, either to execute the writ personally, or to procure it 
to be executed by some other person for whom he is respon- 
sible" (/). 
Special Thirdly, special bailiffs : these are officers appointed by the 

''^''""' sheriff merely for the execution of a particular writ at tiie in- 

stance of the plaintiff(m). 

Questions have often been raised as to what is sufficient evi- 
dence of the appointment of a special bailiff. It has been held, 
that a mere request to a sheriff' to deliver his warrant to a par- 
ticular officer did not amount to such an appointment, because 
" in point of practice particular bailiffs are employed by certain 
attornies to perform all the duties of their office" (m). But the 
following letter from the plaintiff has been held to amount to 
such an appointment, — " Myself against D. I enclose you a 
writ herein, and shall feel obliged by your granting a warrant 
hereon, directed to Mr. M. and Mr. B. I shall write to Mr. B. 
in a day or tvvo"(o). So, where the plaintiff^'s attorney requested 
that the warrant on a ca. sa. might be addressed to a particular 
officer, himself delivered the warrant to that officer, took him 
in his carriage to the place of arrest, and overruled doubts which 
he entertained as to the legality of the arrest ; it was held, that 
the officer must be considered as a special bailiff'(p). 
Liability foi Where a special bailiff' has been appointed at the instance of 
.cismspeciai ^^^^ plaintiff, the sheriff is not in general liable to be ruled by 
the plaintiff' to return the writ(y). But under special circum- 

that in Cumberland there are bound 558; Corbet v. Brown, 6 Dowl. 794 ; 

bailiffs, but each warrant is made out Alderson u. Davenport, 13 M.&W. 42. 
and delivered lo a special bailiff ap- (o) Ford v. Leche, 6 Ad. & El. 

pointed hy the party on an indemnity 699; 1 N. & P. 737, S. C; sed qatere, 

given to sheriff'. see Alderson v. Davenport, ubi aiip. 

(k) 1 Dowl. 6c Ry. 309. (p) Doe v. Trye, 5 N. C. 573 ; 7 

(0 Taylor v. Richardson, 8 T. R. Scott, 704, S. C. 
505. (q) De Aloranda v. Dunkin, 4 T. R. 

(m) It is usual and advisable, in ail 119; Hamilton v. Dalziel, 2 Blac. 

cases when a special bailiff' is ap- Rep. 952 ; and if such a rule be ob- 

pointed, to take an indemnity, a form tained, the Court will discharge it on 

wht-reof will be found, ;;wf. Append. motion, where a special bailift'has been 

(^n) Balson i. Meggatt, 4 Dowl. appointed. 



THE BAILIFFS. 41 

Stances (of which notice should be given him and an indemnity chap. m. 
offered) he may be so ruled. For instance, where aji.fa., after „l^^llj^ 
seizure, has by reason of an adverse claim turned out abortive, 
and the plaintiff requires a return of nulla bona to enable him 
safely to sue out a ca. sa. (r). The appointment of a special 
bailiff also frees the sheriff from liability to any action or suit 
of the plaintiff for irregularity of the bailiff in the execution of 
the process (s). And no liability in such case accrues to the 
sheriff until the duty of the special bailiff is exhausted ; for in- 
stance in case of arrest on a ca. sa., not until the party is arrested 
and delivered into the actual custody of the sheriff (i). There- 
fore, where a sheriff, holding a capias at suit of R. against D., 
received from F. a capias at suit of F. against D., together with 
an appointment by F. of M, and B. as special bailiffs, and then 
issued a warrant to M. on the writ at the suit of R., whereupon 
D. was arrested, gave a bail-bond, and was thereupon allowed 
to go at large by all who at the time had not received any warrant 
at suit of F. ; it was held, that although the actual arrest at suit 
of R. was a constructive arrest at suit of F., yet that the agency 
of M. and B. did not cease when the arrest was made, and that 
the sheriff was not liable {n). But in such a case the sheriff 
would be liable alter the duty of the special bailiff is performed, 
e. g., the arrest made and the prisoner delivered into the actual 
custody of the sheriff (v). These questions obviously can only 
arise between the person who has appointed the special bailiff . 
and the sheriff. To all other persons the sheriff (as well as the 
plaintiff) must answer for the acts of the officer who holds his 
warrant, whether under a special or common appointment. A 
special bailiff is subject to the same liabilities for extortion and 
other misconduct as an ordinary bailiff (^«'). 

Bv the sheriff's oath he swears, that " he will take no bailiffs Quai.ficaiions 

J tor the office. 

into his service but such as he will answer for, and shall cause 
them to take such oaths as he liimself does, in what belongcth to 
their business and occupation." And there is a statute, neglected 
in practice, which directs that sheriffs shall put in such bailiffs 

(»•) Hauling r. Flol.ier, 9 Dowl. C. 573 ; 7 ScoU, 704, S. C. 

659 ; 2 Man. & Gr. 914 ; -i ScoU, N. (l) Ford v. Leche, ubi supra. 

R. 293, S. C. See Bradley i'. Cair, (n) Ibid. 

Scott, N. R. 523. {v^ Taylor v. Richardson, 8 T. R. 

(s) Pallister v. Pallister, 1 Chit. 505. 

R. 614; Porter i'. Viner, ib. 613 a ; (w) See Plevin v. Priace, 10 Ad.<k 

Ford r. Leche, 6 Ad. & El. 699; IN. El. 494; and as to liability of bailifFs, 

& P. 737, S. C. ; Doe v. Trye, 5 N. post, 44, 45. 



42 



OF THE SHERIFF S OFFICERS. 



CHAP, iir, 
SECT. iir. 



Difqnalifi- 
calions by 
reasou of llie 
office. 



The bailiff's 
aiKhorily, 
how derivet'. 



and liundredors having land within the said baih'vvicks and 
hundreds for whom they will answer (i:). It seems tliat inas- 
much as the office of bailiff is one of responsibility and trust, it 
cannot properly be intrusted to an infant (?/). 

By rule of the court of K. B. 1654, a sheriff's officer was 
prohibited from being an attorney, and until lately there was a 
statutory prohibition to the same effect in 1 Hen. 5, c. 4 ; but 
since the repeal of that statute by 7 Will. 4 & 1 Vict. c. 55 (z), 
it may be doubted whether the prohibition by the rule of 1654 
is any longer in force. By rule of court, C. B., M., 14 Geo. 2, 
no sheriff's officer, bailiff, or other person, concerned in the 
execution of process, shall be bail in any action ; which rule 
prevails in practice in Q. B. and Exchequer (a). 

When the sheriff appoints a bailiff, he cannot abridge him of 
his power (6). The bailiff is not, however, the general recog- 
nized officer of the sheriff, like the under-sheriff (c) ; it is from 
the warrant, and not from his appointment as a sheriff's officer, 
that the bailiff derives his authority to execute the writ ; there- 
fore the act of a regular sheriff's bailiff in the execution of pro- 
cess, is not sufficient to fix the sheriff with a liability for such act, 
without proving the warrant (c/) ; therefore, if a bailiff make an 
arrest before a warrant is delivered to him, he is a trespasser, nor 
will a warrant subsequently sealed and delivered to him legalize 
the arrest (e). If the warrant be directed to one bailiff and he 
adds the name of another bailiff (/), or if the warrant be issued 
in blank and the bailiff's name be afterwards inserted (g), the 
persons whose names are so added or inserted would be tres- 
passers for taking the defendant or his goods under such an 
authority. But it seems sufficient, if the bailiff's name be inserted 
before the warrant is given out of the sheriff's office, though after 
the sealing (A). And a mere verbal mistake does not vitiate the 

!\nd see 3 Stark. Ev. 



(i) 14Ed. 3, s. l,c. 9. 

(v) Cuckson V. Winter, 2 Man. & 
Ry."313. 

(z) Overlooked, as it seems, in fram- 
ing the 2nd sciied. to 6 & 7 Vict, c, 73. 

(a) Ante, 33. See Doldern v. Feasi, 
Stra. 890. A person employed by the 
sheriff in warning juries is within this 
rule. Bolland r, Fritchard, 2 Bla. 
Rep. 799. And this applies to officers 
of the palace-court being bail in the 
superior courts, Barnes' Supp. 9. 10. 

(6) 2 Brownl. 283. 

(c) Drake v. Sykes, 7 T. R. 113. 



(d) Id. ibid. 
1337. 

(e) Hall V. Roche, 8 T. R. 1 87. See 
Plomer v. Bull, 5 Ad. & El. 823. The 
defendant may be arrested again on a 
proper warrant. 

(/) Houssia V. Barrow, 6 T. R. 
122. 
(g) Burslem v. Fern, 2 Wils, 47, 
(//) Rex V, Harris, 1 Russell on 
Crimes, 513 ; 1 East, P. C. Add. 18 ; 
2 Leach, C.C. 920; Rex v. Stockley, 
1 East, P. C. 310 ; Foster, 312 ; Ste- 
venson's case, 19 State Trials. 



THE BAILIFFS. 43 

warrant (i). The authority given by the warrant, being for the chap. m. 
administration of justice, is not to be strictly construed ; there- sect, hi. 
fore, on a warrant to four bailiffs, jointly and severally, two may 
execute it (k) ; but if the warrant be to several jointly but not 
severally, they must all be acting in the execution of it (/). As 
to when a warrant to the bailiff of a liberty may be acted on as 
an ordinary warrant to the sheriff's bailiff, and when not, see 
post, Chapter 4 (m). 

The mode and time in which the bailiff must execute his duty His duly in 
on writs directed to him, will be the subject of several of the wViis. 
following chapters of this work. It has been said, that in exe- 
cuting a writ it is not necessary for the known officer of the 
sheriff to show his warrant, although the party demands it (n) ; 
nor is any other bailiff bound to produce his warrant without a 
demand of it (o). But it has been doubted whether or not every 
officer is not bound to produce his warrant, on making an arrest, 
if it be demanded (p). When an officer makes an arrest, or the 
like, he ought to show at whose suit, out of what court, and for 
what cause he makes the arrest {q). 

An undertaking made to the bailiff to put in good bail, in Promises to 
consideration of his discharging a person arrested by him on '" ' '" 
mesne process, is void by the statute 23 Hen. 6, c, 9(r). So 
a promise to pay the bailiff a sum of money for admitting to bail 
a defendant in his custody on mesne process, is void ; for, by 
23 Hen. 6, it is his duty to admit such persons to bail, and a 
promise made in consideration of the bailiff's doing his duty is 
nudum pactum (s). But in one case, a promise made to a bailiff, 
on the behalf of the plaintiff, in consideration of allowing a pri- 
soner to remain in the house of a third person all night, was 
held good (t). 

(i) Williams «. Lewis, 1 Chit. 611. (/)) Hall v. Roche, 8 T. R. 188. 

(k) White V. Wiltsliiie, Palm. 52 ; " It is very important that in all cases 

Lashbroke's case, Mut. 127 ; Rex r. where an arrest is made by virtue of a 

Hobbs, Cro. Eliz. 913; S C.Yelv.25. warrant, the warrant, if demanded at 

(/) Boyd V. Durant, 2 Taunt, 161. least, sliould be produced." — Per Lord 

(?n) And see Jackson V. Hill, 10 A. Kenyon. 

& El. 477. (q) Macalley's case, 9 Rep. 69; 

(») Macalley's case, 9 Rep. 69, The Duchess of Rutland's case, 6 Rep. 

6ih Resolution. Lord Coke there says, 54 a. 

" Where the books speak of a known (r) Rogers v. Reeves, l.T. R. 418. 

bailiff, it is not requisite that he be (s) Stotesbury t;.Smith,2Burr.924. 

known to the party who is to be ar- (t) Benskin v. French, 1 Sid. 132 ; 

rested, but if he be commonly known S. C. 1 Lev. 98, recog. T. Jones, 139 j 

it is sufficient." and per Buller, J., 1 T. R. 422. 

(o) /(/. ibid. 



44 



OV THE SHERIFF S OFFICERS. 



CHAP. in. The sheritiis responsible for all the acts of his bailiff" done in 

SECT. ui. the execution oi" \viits(?<\ directed to the slieriH' in his niinis- 

Rcsponsibi; terial capacity (v) ; but he is not liable to be indicted for tlic acts 

Illy ot slieriH » J \ ■/ ^ 

aiui haiiitt for of his officcr (<). " It is a tieneral rule that the law looks to 

acts (tone by ^ ' _ " _ 

the bailirt. the sheriff, and to him alone. He is responsible even for the 
bailiff's wilful mtscondnct or deliberate fraud. ' He is identified 
with his officers in every case, except where, as in Crowder v. 
Long ( 7/), the party opposed to the sheriff is colluding with the 
officer (;3).' " And his civil responsibility is not confined to the 
improper manner of executing what is commanded by his war- 
rant, but extends to all acts, however wrongful, provided they 
be done under colour of the writ (a) ; even though against the 
sheriff's express instructions [b). Thus the sheriff is liable 
where his officer, in executing a writ against the goods of A., 
takes the goods of B. (c), or takes the person instead of the 
goods of the debtor^ under aJL fa. {d), or receives the debt and 
costs when he ought to have arrested (e). So where a bailiff in 
possession of goods under a distress received a f. fa. from the 
sheriff, and sold the goods under it, the sheriff was held liable for 
poundbreach and rescue at the suit of the landlord (/). And the 
sheriff, though morally innocent, is liable to the consequences of 
a fraud perpetrated by his officer, e.g. in procuring an indemnity 
bond(g). Also for the extortion of his officer (/«), and to a 
penal action on the 32 Geo. 3, c. 28, for an offence of his officer 
under that ac\.(i). And so it was held, that a rjui tarn action 
would lie against the sheriff on the statute 44 Geo. 3, c. 1^, s. 1. 



(u) Saunderson v. Baker, 2 Bla. 
Rep. 832 : S. C. 3 Wils. 309. See 
also 2 Keb'. 352. 

(i;) Not in case of wiits issuing out 
of county court, in whicli he exercises 
a. judicial capacity. Tunno v. Morris, 
4Dovvl. 225 ; 2 C. M. & R. 298, S. C. 

(a) Laycock's case, Latch, 187; 
S.C. Noy,90,perGoul(l, J.; 3 Wils. 
316. See R. v. Hu2;gins, 2 Lord 
Raym. 1880. 

( y) 8 B. & C. 598 ; 3 Man. & Ry. 
17, "S. C. See Cook j;. Palmer, 6 B. 
& C. 739 ; 9 Dow. & Ry. 723, S. C. 

(s) J. W.Smith's Mercantile Law, 
129 (w), referring to Raphaels. Good- 
man, 8 Ad. & El. 565 ; Smart v. 
HuUon, ibid. 568, n. 

(a) Secus, if not under colour of 
the writ. See Cook r. Palmer, 6 B. 
& C. 739 ; 9 Dowl. & R. 723, S.C. ; 



Tomkinson v. Russell, 9 Price, 287 ; 
Bowden v. Wail h man, 5 Moore, 183 ; 
Stuart V. VVliitaker, 1 Ry. & M. 310. 

(6) Scarfe v. Halifax, 7 M. &W. 288. 

(c) Saunderson v. Baker, 3 Wils. 
309 ; S. C. 2 Bla. Rep. 832 ; Ack- 
worth V. Kempe, Uoug. 40. 

(rf) Smart v. Hutton, 8 A. & E. 
568, n. 

(e) Woodman v. Gist, 8 C. \ P. 
213, Litlledale, .L 

(J ) Reddell v. Stowey, 2 M. cc 
Rob. 358. 

(g) Raphael v. Goodman, 8 Ad. 
& El. 565. 

{h) Woodgale v. Knatchbull, 2 T. 
R. 148. 

(i) PechelU'.Layton,i(Z. 712,512. 
See Plevin v. Prince, 10 Ad. & EI. 
494 ; Barsham v. Bullock, 10 Ad. Sc 
El. 23, and post. 



THE BAILIFFS. 45 

where the bailiff had discharged a seaman in his custody on chap. m. 

giving a bail-bond, instead of delivering him to the commander l !_ 

of one of her majesty's ships, as required by that statute (j). 
In that case it was urged in argument, that the bailiff who dis- 
charged the seaman at all events was liable to the penalties of 
that act ; to which Lord Ellenborough, C. J., replied, " That is 
not so clear ; for if the sheriff were made responsible for the 
acts of his own oflicers, I am not prepared to say that any of his 
bailiffs would be liable to the penalty." Whether or not the 
bailiff himself be liable to penalties under similar acts of parlia- 
ment, where bailiffs are not expressly mentioned (k), may be 
questionable, but it seems that the court would not allow penal- 
ties to be recovered against both the sheriff and his officer (/). 
The bailiff is liable to an action if he commit a trespass in the 
execution of the writ, although the sheriff is also responsible. 
But for negligence or misfeasance, or nonfeasance in executing 
a writ, to an action by the person at whose suit such writ issued, 
the sheriff is alone responsible (?h). Where an action is brought 
against a bailiff for what he might lawfully do in the execution 
of the writ, he shall not be prejudiced by the sheriff's return (n). 
I'he liability of the sheriff for the acts of special bailiffs has 
been already discussed (o). 

What has been said above as to the liability of the sheriff Liability for 
refers to cases where he is a ministerial officer, and the process county court, 
is directed to him ; but he is not liable, merely as sheriff, for the 
wrongful acts of his bailiffs in executing other process. For 
instance, he is not in ordinary cases liable for the wrongful act 
of a bailiff to whom process out of the county court (of which the 
sheriff is a component part though not judge) (p) is directed (q). 
But he would be liable even on such process if he directed it to 
a special bailiff, taking an indemnity (>). 

Bailiffs in some cases have been punished summarily by the How punish- 
ed for mis- 

(j) Stuimy, q. t. y. Smith, 11 East, (p) Jones v, Jones, 5 M, & W. 

25. See also Stanvvay, q. 1, v. Perrv, 523. 

2 Bos. & Pat, 157. " (7) Tinsley v. Nassau, M, & M. 

(k) See where lliey are, Plevin i-. 52 ; 2 C. & P. 582, S. C. ; Tunno v. 

Prince, 10 Ad. & E\. 494. Morris, 4 Dowl. 224 ; 2 C. M. & R. 

C/) Pechell r, Layton,2T. R.7J2. 298, S. C. ; Pitcher i'. King, 9 Ad. & 

(?/() Cameron v. Reynolds, Cowp. El, 288 ; 1 Per. & Dav. 297, S. C. ; 

403. vvhere a false return was alleged to 

(11) Parkes v. Mosse, Cro. FJiz. have been made by tiie sheritt's direc- 

181. And see Shaw v. Simpson, I tion. 

Lord Raym. 184. (r) See Rradley v. Carr, 3 Scott, 

(0) Ante, 40, 41. N. R. 523. 



46 OF THE sheriff's OFFICERS, 

CHAP. III. courts. The courts are empowered by statute in some cases 
SECT. Ill, ^^ijich will be mentioned in their proper places to redress offences 
of bailiffs on petition ; and also, if bailiffs, in executing the pro- 
cess of a court, behave themselves illegally or oppressively, it 
has been said that the court would punish them on motion (r). 
Where a sheriff's officer had been guilty of outrageous conduct 
in arresting a defendant, the plaintiff not being cognizant of such 
conduct, the court, on discharging the defendant, ordered the 
officer to pay the costs (s). But a sheriff's bailiff cannot be 
considered, like an attorney or the sheriff himself, as an officer 
of the superior courts, and therefore the courts have no power 
summarily to compel a bailiff to fulfil an undertaking (t). 
Sheriff's re- jf the sheriff be damnified by the act or negligence of his 

medy against m'/vj it* 

baiiitf'8 sure- officer, he has his remedy over on the bailin s bond. It is es- 
sential to aver, in an action by the sheriff against the surety of a 
bailiff, for a default by him in executing a writ, that the warrant 
was delivered to the bailiff, and it seems to be necessary to aver 
also that the warrant was directed to the bailiff(«). And where 
a gaoler was under covenant to perform duties relative to re- 
moval of prisoners, and had given a bond with sureties for due 
performance of his covenants, and the sheriff directed a warrant 
for removal to the gaoler and J. S. " by him, the sheriff for that 
time only, thereto especially appointed," and J. S. permitted an 
escape, it was held, that, as the sheriff had specially appointed 
J. S., the sureties were not liable (w). The sureties are liable 
only for the due performance of acts within the scope of the 
officer's duty ; therefore they have been held not liable for money 
received under an agreement entered into by the officer on the 
sale of goods taken in execution, in entering into which he had 
exceeded his authority (w) . 

An action may be maintained by the sheriff against the sureties 
on covenant to indemnify from the costs, &c, touching or con- 
cerning any matter whereby the bailiff should act as bailiff, and 
to indemnify him from all damages, losses, costs, &c. by reason 

(j) Park and Percival v. Evans, 18, cit, 2 Saiind, 414. 

Hob. 62. See i/;.263, 264. (v) Ryland v. Lavender, 9 Moore, 

(s) Taylor v. Evans, 1 Bing. 367 j 71. 

S. C. 8 Moore, 398. (w) Cooke v. Palmer, 6 B. & C. 

(0 Brown v. Gerard, 1 C. M. & 739; 9 D. & R. 723 See Webb v. 

R.595; S. C. 3 Dowl. 217. James, 7 M.& W. 279, and cases there 

(it) Desanges v. Priestley, 3 Moore, cited by E. V. Williams, argnendo. 
246. And see Horton v. Day, Sty. 



THE BAILIFFS. 



47 



SECT. iir. 



of any return, &c. where costs or loss have been incurred by chap. hi. 

1 > r> 1 • ernT TTr_ 

him in defending an action, if he has been damnihed m conse- 
quence of any act done by the bailiff, although the bailiff may 
not have done any thing wrong in the matter wherein he acted, 
in respect of which the action had been brought against the she- 
riff, or the loss had been sustained (a-). Thus where the bailiff 
dictates a return of nulla bona, being a correct return, and the 
sheriff is sued on it as a false return, and is put to expense in 
defending the action, he may recover his expenses against the 
bailiff, or his sureties, under the general clause of the covenant 
to indemnify, there being nothing put on the record impugning 
either the act or mode of defending the action (?/). In averring 
the damages sustained and the costs the sheriff has been put to, 
it is not necessary to allege that they were necessarily sustained, 
if the averment, pursuing the terms of the covenant, have no 
such qualification ; nor is it necessary to aver the misconduct of 
the bailiff, if the covenant apply to the acts of the bailiff gene- 
rally (z). And if a sheriff defend an action for a false return as 
well as he can, he may recover his costs from the sureties, though 
he has a verdict against him on thegromid that evidence was not 
produced, which in another and subsequent suit between the 
same parties, involving the same question, was obtained (a). If 
in such an action, after he has obtained a rule nisi for a new trial, 
he compromises the suit with the assent of some of the sureties, 
by paying a less sum for damages than would be recoverable, 
and a less sum for costs than were incurred, he may recover his 
own costs against a surety who did not assent, if it appear that 
the compromise was under such circumstances reasonable (6). 
In such a case the words " costs of any application to the court 
touching or concerning any matter wherein the bailiff should act 
or assume to act as bailiff," comprise the costs of an application 
to the court to set aside the judgment on which the execution 
was founded, the return to which gave rise to the action against 
the sheriff (c). A surety cannot discharge himself of his obliga- 
tion within the year, without the consent of the sheriff (r?). 

(.r) Fairbrother v. ^Vorsley, 1 Price, (a) Ibid. 

P. C. 65; 1 Tyr. 424; I'C. & J. (6) Ibid. 

549 ; 5 C. & P. 102. (c) Ibid. 

(y) Ibid. (d) Martin v. VVenman, Lofft, 225, 

(e) Ibid. *■ 



48 



OF THE SHKRIFF S OFFICERS. 



CHAP. HI. 

SECT. IV. 



Of llie juris- 
diction of tlie 
sheiiffs over 
gaols. 



Section IV. 

Of the Gaoler {e). 

Every county has two kinds of gaol ; viz. one for debtors, 
which the slier iff may appoint in any house within his county 
that he pleases ; and the other gaol for breakers of the peace, 
and matters of the crown, which is the county gaol (/). And 
although all gaols and prisons regularly belong to the king, yet 
the sheriff, or the lord of a franchise, shall have the custody 
and keeping of all persons taken by virtue of any precept or 
authority to him directed, notwithstanding any grant by the 
king of the custody of prisoners to another person (^). By 



(e) It would be altogether out of 
place to introduce in this work even 
an outline of the various statutory re- 
gulations by which gaols and gaolers 
are governed. These subjects will be 
found fully treated of in Chit. Burn's 
Justice (29th edit.) tit. Gaoh: and 
see 4 Geo. 4, c. 64 ; 5 Geo. 4, c. 84, 
85; 6Geo.4, c. 40; 7 Geo. 4, c. 18; 
9 Geo. 4, c.31; 5 &6 Will. 4, c.38, 
76 ; 5 & 6 Will. 4, c. 53, 98 ; 2 & 3 
Vict. c. 56 ; 5 & 6 Vict. c. 98. This 
section will be confined to a general 
statement of the law affecting the re- 
lation of sheiifF and gaoler. 

(/) Anon. Latch, 16; Vin. Abr. 
til. Gaoh (A). 

(o-) Mitten's case, 4 IJep. 44; T. 
Raym. 423. In Bac. Abr. 6th edit, 
lit. Gaols and Gaoler {B), an ojiinion 
of the Attorney and Solicitor Generals, 
De Grey and Wiiies, is quoted, which 
was presented to the king, 21 Jan. 
1767, touching a dispute between tiie 
Bishop of Ely on the one hand, and 
the inhabitants of that liberty on the 
other, as to the obligation to repair 
the gaol ; the passage cited is as fol- 
lows : " Although all gaols, whether 
in counlies at large, or in particular 
franchises, are deemed to belong to 
the crown, as far as the public admi- 
nistration of justice is concerned, and 
it is but the custody of them which is 
placed in the hands of the sheriff, or 
the lords of tiie franchise ; yet we are 
not able, in a matter which lies buried 
in much obscuiily, and has scarcely 
ever been called into discussion in 



modern times, to find upon what au- 
thority a great writer in our law has 
inferred from the position, ' that all 
prisons belong to the crown, they are, 
therefore, to be repaired at the common 
charge.' Nor does it appear by whom, 
and from what peisons, and in what 
manner, this charge could have been 
raised. It seems to us more probable, 
that from the time the public gaols 
were re-joined to the counties, and 
committed to the sole custody of she- 
riffs, the charge of keeping and pre- 
serving them in a proper condition 
lay, in the first instance, on the she- 
liffs, and it is probable that the sheriffs 
might have had an allowance for ex- 
traordinary expenses of that sort in the 
E.xehequer : and we observe, that in 
the Stat. 23 Hen. 8, for building new 
gaols in several counties particularly 
mentioned, at the charge of the re- 
spective counties, provision is made 
that the shetills shall be allowed what 
they shall expend in the future neces- 
sary reparations of such new-built 
gaols, in their accounts in the Exche- 
quer. In the same manner, it should 
seem, that lords of franchises who 
have the custody of public gaols in 
their respective jurisdictions commit- 
ted to them, and are thereby respon- 
sible to the public for their prisoners, 
should be bound to find good and 
sufficient gaols as incidental to their 
public trust; and they iiaving no ac- 
counts with the Exchequer, can have 
no such allowance made to them, but 
may well be supposed to submit to 



THE GAOLER. 



49 



the statute 14 Edw. 3, c. 10, it is enacted, that " gaols which chap, m. 

were wont to be in the sheriff's custody shall be again rejoined _J L 

to their bailiwicks, and tliey shall put in such keepers for whom 
they will answer." And by the 13 Rich. 2, c. 15, " the king's 
castles and gaols, which were wont to be joined to the bodies of 
the counties, and are now severed, shall be re-joined to the 
same." And by the statute 19 Hen. 7, c 10, it is provided, 
that " the sheriff of every county shall have the keeping of 
the common gaol there, except such as are held by inheritance 
or succession. And all letters patent, or the keeping of gaols 
for life or years are annulled and void ; howbeit, that neither 
the King's Bench nor Marshalsea shall be in the custody of any 
sheriff; and the patents of Edward Courtney, Earl of Devon- 
shire, and John Morgan, for keeping prisons, are excepted." 
And by 11 & 12 Will. 3, c. 19, s. 3, " all murderers and felons 
shall be imprisoned in the common gaol, and the sheriff shall 
have the keeping of the said gaol." 

It has been said that a sheriff may move the gaol from one 
place to another within the county, but he must keep his 
prisoners within it, and not suffer them to go out though he 
himself attends them (A). 

It is enacted by 4 Geo. 4, c. 64, s. 10, " that no keeper of wiio may be 
any such prison (all county gaols and some borough gaols) shall 
be an under-sheriff or bailiff, nor shall be concerned in any oc- 
cupation or trade whatsoever." 

The gaoler, it is said, is the sherift"s servant, whom he may jhe sheriff's 
discharge at pleasure (i). The duty of the gaoler is the safe d'eia.i'i^ot'"^ 
custody of all persons committed to his charge : in this he is s^o'^""- 
but the sheriff's deputy; and if the gaoler permit a debtor to 
escape from the gaol, the sheriff is liable to an action for an 
escape. As, where a court, not having jurisdiction in the par- 
such charge in consideration of the a lord of a franchise could only be 
honourable exemption of their fran- charged for the repair of a gaol wiihin 
chise." For those reasons those two the franchise by immemorial usage. 
great lawyers were of opinion, that As to the constable of the castle of 
the Bishop of Ely was liable to repair Chester, see Kex v. Antrobus, 2 A. & 
the gaol of his franchise. Oiderswere E. 791. 

given to institute a suit at the expense (h) Hob. 292; Latch, 16; Sid. 

of tlie crown to try the question ; but 318; Williams d. Mostyn, 4 M. 5c W, 
Dr. Mawson, who then filled that see, 145. 

submitted, and repaired the gaol at his (i) Bac. Abr. lit. Sheriff (H), 5. 

own expense. In Rex v. The Earl of Sed vide 24 Geo. 3, sess 2, c. 54 ; 31 
Exeter, 6 T. R. 373, it was held, that Geo. 3, c. 46 ; 34 Geo. 3, c. 84, 



50 OF THE sheriff's OFFICERS. 

CHAP. III. ticular case, ordered the discharge of a prisoner in the county 
^^'"' ^^' gaol for debt, the sheriff was held liable to an action for this as 
an escape (/:). In the case of Pliimmer v. Whitchcott(/), it was 
held, that where the warden of the Fleet in fee grants the office 
for life to A., who suffered a prisoner in execution to escape, 
and was not of ability to answer for the escape, that the warden 
himself was liable. By the statute 8 & 9 Will. 3, c. 27, s. 1, 
" prisoners upon contempt or mense process, or in execution, 
committed to the custody of the marshal of the King's Bench, 
or warden of the Fleet (m), shall be detained within the said 
prison, or the rules thereof, until discharged by due course of 
law ; and if the marshal, or warden, or keeper of any prison, 
shall suffer any prisoner committed to their custody, either in 
mesne process or in execution, to go or be at large out of the 
rules of the prison, (except by virtue of some writ of habeas 
corpus, or rule of court, to be granted only upon motion made 
or petition read in open court,) such going, or being at large, 
shall be deemed an escape ;" and by sect. 8, " if the keeper of 
any prison, after one day's notice in writing, refuse to show any 
prisoner committed in execution to the creditor, or his attorney, 
such refusal shall be deemed an escape ;" and by sect. 9, " if 
any person, desiring to charge another with any action or exe- 
cution, shall desire to be informed by the keeper of the prison, 
whether such person be a prisoner or not, the keeper shall give 
a note in writing thereof, to such person upon demand, at his 
office for that purpose, upon pain of forfeiting 50/., and such 
note shall be sufficient evidence that such person was at that 
time a prisoner in actual custody;" and by statute 8 & 9 Will. 
3, c. 26, " the keeper of a prison, for taking bribes for conniving 
at or permitting an escape, is subject to a penalty of 500/., and 
to be for ever incapable of executing his office ;" and by statute 
6 Geo, 4, c. 16, s. 38, " the gaoler to whose custody a bankrupt 
is committed, suffering him to escape, is liable to a penalty of 
500/." But where the gaoler permits a prisoner committed to 
his charge on a criminal account to escape, the gaoler, and not 
the sheriff, is answerable ; for the sheriff is liable to an action, 

(k) Brown v. Compton, 8 T. R. v. Griffith, Hard. 29. 

424, (m) See now as to Queen's Prison, 

(0 2 Lev, 159; S, C.,T, Jon,60 ; 5 & 6 Vict, c, 22. 
1 Vent, 314. See also Wainwriglit 



THE GAOLER. 51 

but not to an indictment, for the default of his officer in suffering chap. m. 
a voluntary escape (n). By statute 19 Hen. 7 , c. 10, a fine for a sect, iv. 
negligent escape of any person indicted for high treason shall be 
one hundred marks at least ; if committed for suspicion of high 
treason, forty pounds ; if indicted for murder or petty treason, 
twenty pounds ; if for suspicion of these, or indicted for other 
felony, ten pounds ; if not indicted, five pounds : and if the 
gaoler be not sufficient, the sheriff shall answer for his neglect. 

As the sheriff is liable for the escapes of prisoners confined Securityfrom 
in the county gaol for debt, he should require from the gaoler {{jg fheWff.'** 
a bond, with sufficient sureties for the due performance of the 
duties of his office (o). In an action on a bond given by a 
gaoler to the sheriff, the condition of which was, to indemnify 
the sheriff against escapes, and to attend at sessions and 
assizes, and " also when any writ of habeas corpus for the re- 
moval of any prisoner should be served on the sheriff, under- 
sheriff, or deputy, or on the gaoler, to convey, by the command- 
ment or appointment of the said sheriff, his under-sheriff, or 
deputy, safely and without delay, all prisoners to and from the 
gaol of the county to such court or place as the writ should 
direct," it appeai*ed that the sheriff had directed a warrant on 
a habeas corpus to the gaoler, and to W. W., " for this time only 
specially appointed ;" the prisoner escaped from W. W. whilst 
conveying him to London, the gaoler at that time attending 
sessions, it was held that the gaoler was not liable on his bond 
for this escape (p). 

It seems to have been considered by the court of King's Bench Liability of 
in Brandling v. Kent (ji), that a gaoler would not be liable for gaoler, 
any irregularity in the arrest of a prisoner committed to his 
charge, but that the sheriff alone would be answerable, and that 
it was the duty of the gaoler to receive a person tendered to him 

{ii) I Hale's P. C. 597. But see gaoler should be enjoined, that as 

R.v. Fell, 1 Ld. Raym. 424 ; 1 Salk. soon as he receives a prisoner he 

272; see also 2 Hawk. P. C. 135, must inform the under-sheriff, that a 

136, 139. A gaoler de facto is liable charge may be sent upon the receipt 

to be indicted for suffering a criminal of any other process against such pri- 

to escape, Vin. Abr. Gaoler (C). soner, otherwise an escape might easily 

(o) For the form of the condition happen, 

of the gaoler's bond see Append. The (p) Ryland v. Lavender, 2 Bing. 

under-sheriff should, from time to 65. 

time, compare his indent book with (</) 1 T. R. 60. See per Buller, J. 

the gaoler's, and mark all the dis- and Oilier v. Bessey, T. Jones, 214. 
charges, &c., in the margin. The 

E % 



52 OF THE SHKRIFr's OFFICERS. 

CHAP. III. by the sheriff, whether tlie arrest was legal or not. That doctrine, 
sECT.iv.^ however, was unnecessary to the decision of the case, in which 
it was only held that the mere fact of the prisoner being ten- 
dered to the gaoler after the return of the writ did not excuse 
him. And it has been ruled by Lord Ellenborough that a gaoler 
though acting bona fide, and without the means of ascertaining 
the identity of the person imprisoned, is liable to an action if 
by mistake of the sheriff's officer the warrant was executed 
against a wrong person (?•). But a gaoler receiving a prisoner 
under a magistrate's warrant is protected by 24 Geo. 2, c. 44, 
s.G(s). 

Regniaiion There are several statutes which provide for the regulation 

of gaols, and for the punishment of gaolers who have been 
guilty of extortion or oppression of criminals committed to 
their charge, which it would be tedious and out of place to 
embody in this work(i). 

The gaoler The gaoler is bound to have sufficient force to prevent a 

for.p, but not breach of the prison; for nothing but the act of God or the 
^' king's enemies will excuse an escape ; even breaking the prison 

by mobs or rebels is not an answer to an action for an escape (?<). 
On the other hand the gaoler must not be guilty of cruelty, or 
of putting debtors in irons, without a good cause (a:). Where 
felons in a gaol were breaking their fetters, and the gaoler went 
to them with a hatchet, and they assaulted and beat him, the 
gaoler killed two of them with the hatchet — resolved by all 
the council that it was well done (v/). Lord Holt ruled, that if 
a prisoner be imprisoned in a room by the gaoler where a per- 
son is ill of the small-pox, to which he objects, and catches the 
small-pox and dies, it is murder in the gaoler (x). 

Bond given Bonds given by a prisoner to a gaoler for ease and favour are 

lo a gaoler by in ^ l < 
a prisoner. 

(?•) Aaron v. Alexander, 3 Camp. Indeuuiily Acts passed after Lord 

35 ; see White v. Taylor, 4 Esp. 80. Gcoige (Joidoii's riots, 

(s) Bute I'. Newman, 1 Gow, \, (i) 2 Inst.38 ; Fleta, 1. 1, c. 26 ; 3 

P. 97. Inst. 34. By the stat. 32 Geo. 2, c. 

(t) See T. Chitty's Burn's Justice, 28, s. 11, the judges or a judge of as- 

29th edit., tit. Gaols ; and Bac. Ahr. size have the power of redressing and 

tit. Gaol and Gaoler, where tlic provi- making orders upon complaints made 

sions of the legislature will be CouirI. to them of the oppression of a gaoler, 

(u) Elliott V. the Duke of Norfolk, &c. 

4 T. R. 789 ; Southcote's case, 4 Rep, (y) Jenk. 23, pi. 42. 

84 ; Crompton v. Ward, Stra. 429 ; (z) Castel r. Cambridge, 2 Stra. 

O'Neil V. Marson, r, Burr. 2812; 856, See R. i, Iluggins, 2 I.d Raym. 

Roll. Abr. Escape (D), 7. See the 1574, 



THE (iAOLKK. 



53 



SECT. IV. 



void, by the statute 23 Hen. 6, c. 10 (tt). So a bonil to in- chap. in. 
deninify the gaoler from the consequences of allowing his 
prisoner to go at large is void (b) ; however, a bond given to a 
gaoler by a prisoner to be and continue a true prisoner, if not 
for ease or favour, is good (c) ; but a bond given to a gaoler for 
his fees or diet is void ((/). 

We have seen how the fees payable by prisoners are regu- Fees. 
]ated(e). Formerly the gaoler, and from him the under-sheriff', 
received a fee, generally 2s. GiL, on a liberate granted to a debtor 
on his discharge ; but now, by the statute 55 Geo. S, c. 50, s. 
10, it is enacted, " that such liberate shall be granted to such 
debtor, free of all expenses ;" and the court of quarter sessions, 
subject to the approbation of the judges of assize, are em- 
powered to make compensation to the sheriff^, or under-sheriff", 
as they think fit (/). And by the 13th section of the same 
act, " any gaoler who sliall, after the 1st of October, 1815, 
exact from any prisoner any fee or gratuity for or on account 
of the entrance, commitment, or discharge of such prisoner, or 
who shall detain any prisoner in custody for non-payment of 
any fee or gratuity, shall be rendered incapable of holding his 
office, be guilty of a misdemeanor, and be punished by fine and 
imprisonment." Where a writ of habeas corpus is delivered to 
the gaoler to bring uj) a prisoner in his custody for debt, he is 
bound to obey it, and cannot detain tlie defendant for his fees (g). 
The court, however, will order that the fees be paid before he 
is turned over (h). An action for money had and received is 
maintainable against a gaoler wlio takes more than the rates 
settled by regulation of magistrates, for lodging Sec. within the 
gaol, though he has paid over the money to the magistrates (i). 

(«) Oaks t. Cell, 3 Keb. 320,361 ; (d) Id. Ibid. ; Atkinson i. Hobbs, 

jMosdell r. Middleton, 1 Vent. 237 ; 1 Rol. Rep. 338. 

S. C. T. Raym. 222 ; 3 Keb. 133 ; in (e) Aitte, p. 42, 43. 

Ihatcase, Twisdeu, J. held, that if the (/) This extends to Middlesex, 

bond be also given for a just debt, it R. v. Justices of Middlesex, 3 B. & 

is void in toln. Hole, C.J., cmtva. Adol. 100. 

(6) Hob. 14; 1 Vent. 237. And (g) I lopman r. Barber, Stra. 814 ; 

see the opinions of Holt and Treby, White c. Hnugh, il>. 1262 ; Vin. Abr. 

chief justices, and of Powel, J.; 1 tit. Gmiler (D). 

Lri. Raym. 278, 279 ; Plowd. 60.' (h) Per Foster, J., Stra. 1262 3 

(c) Oaks I'. Cell, 3 Keb. 361 ; Rex r. Greenway, 2 Show. 172. 

Lenthal v. Cooke, 1 Saund. 160. (i) Miller v. Aris. 3 Esp. 231 » 



( 54 ) 



CHAPTER IV. 



OF BAILIFFS OF FRANCHISES. 



Of the Nature of a Liberty. — What Writs the Bailiff may execute in 
his Liberty. — Bailiff's Qualification. — To keep a Gaol, attend 
Assizes, ^^c.—Of the Sheriff's Mandate.— The Bailiff's Power 
and Duties, — His Liabilities. 



Of the origin FRANCHISES ov liberties, in which the baiUff or officer hath the 
rfnMhhe"^ return of writs and the ordinary jurisdiction of the sheriff, exist 
with return of ^^ yarious parts of England, and are of great antiquity («). It 
would appear that after the Conquest, the lords, to maintain their 
authority, purchased the bailiwicks of hundreds, sometimes for 
years, for life, or in fee, and for this they had courts leet and 
return of writs (6). Their franchises are derived from the Crown, 
and exist either by grant or prescription (c). They are of two 
kinds, either a grant to a person and his heirs, or to a body politic, 
for their successors to have the franchise of the return of writs 
within a particular district, or a grant to the lord of a franchise 
to appoint a bailiff who is to have the return of writs within the 
district or liberty (d). In the former case the grantee, his heirs 
or successors, is the officer or bailiff of the liberty, and has the 
return of writs therein, and is responsible for the due execution 
of the duties incident thereto (e). In the latter case the duty of the 
grantee or lord of the franchise is to appoint a badiff, who is the 
person who has the benefit and obligation of return of writs (/). 
And this distinction is to be attended to, for the lord of the 
franchise in the latter case is bound to appoint a sufficient 

(a) It would appear that there was (d) Dalton, Sheriff, 459 ; Newland 

a roll of Liberties, Stat. West. 2, c. 39. v. Cliffe, 3 Bar. & Adol. 636. 

This roll seems to have been lost. (e) See judgment of the Court in 

Ritson's Bailiff of a Liberty, pp. 3, 4. Newland v. Cliffe, 3 Bar. & Ad. 648. 

(6) Gilb. History of C. B.,25, 26. And see Entries, 538 b. and 552 a. 

3rd edit. ; Vin. Abr. tit. Return, 206. there cited. 

(c) Hardr. 422. (/) Dallon, 459. 



OF BAILIFFS OF FRANCHISES. 55 

bailiff of the liberty, and a writ shall go to compel him to choose chap. iv. 
another (g), or he may lose his franchise by his default. But in 
case of the death of the bailiff before return made, or in case of 
the default of the bailiff, in that case the lord of the franchise is 
not responsible (/i). And where a grant was made to the earl of 
W., his heirs and assigns, by his bailiff or bailiffs for that purpose, 
by the said earl &c. from time to time to be deputed, shall and 
may have the full return of writs &c., it was held that the 
bailiff appointed by the lord of the franchise, and not the lord 
himself, was the person to make the return (i). When the bailiff 
dies, the successor and not the lord of the franchise is the proper 
person to make a return (h). 

Where the bailiff of a franchise has the return of all writs within 
his liberty, he also has execution of such writs as ai*e incident 
thereto (J). Lord Coke says, that a grant of the return of writs 
for a county at large is void, for in effect it taketh away the 
office of sheriff (m). But the statute 2 Edw. 3, c. 12, has taken 
away from the crown the power of granting franchises of retorna 
hrevium at this day ; however, it would appear to be the better 
opinion, that re-grant of such a franchise that had fallen to the 
crown by escheat, is not prohibited by that statute (n). The 
bailiffs of franchises may execute the duties of the office by 
deputy, but the returns must be made in the name of the chief 
bailiff(o). 

Although the franchise of retorna hremum within a liberty is .^hat writs 

o " ine baiiiit of a 

eenerallv claimed to be a return of all writs, precepts, and pro- liberty has 

o J . power to exe- 

cesses whatsoever, yet it is quite clear that there are many writs, cute. 
of which the bailiff has not the execution in his franchise ; as 
where the Queen is a party, the sheriff is bound to execute the 
writ within all liberties in his county (^j). So the sheriff, and 

{g) Dalton, 461 ; Fitz. Nat. Brev. and oppressions, and would do more 

164 b. good to the kingdom than all the 

(/i) Year Book, 14 Ed. 4, fo. 1, 6. liberties of retorna brevium have been 

Vin. Abr. Return, p. 213 ; Bro. Abr. worth these 100 years; they are a 

Retorne de Briefe, pi. 99. feather in his cap that hath them, but 

(i) Nevvland v. Cliffe, 3 B. & Ad. they area thorn in the foot of every one 

630. that hath to do with them." 

(/() See cases in the two last notes. (m) 2 Inst. 452, per Lord Hale ; 1 

(0 Per Hale,C. B., 1 Ventris, 412. Ventr. 405 ; 2 H. 4, pi. 12. 
Lord Hale, in that case, complains (») Atkyns d. Clare, 1 Ventr. 399; 

that these franchises are great evils, 4 Inst. 267. 
and that their destruction " would (o) Cro. Jac. 242. 

avoid a great delay of justice, many (;)) 38 Ass. 19; Bro. Chal. 129; 

suits and vexations, grievous wrongs Plowd. 216,243; 5 Rep. 91 b, 93. 



56 OF BAILIFFS OF FKANC'IIISL S. 

CHAP. IV. not the bailiHj has the letiini and execution within the liberty, 
of all writs of quo iiiinus (fj), of writs of inquiry of waste (/), ot 
redisseisin(*), of writs of inquiry (/), or of distringas juratores (u), 
or of writs where the bailiff is a party (x), or wherever the sheriff" 
is judge; where the sheriff is to take pledges, he ought to take 
them, although the execution of the writ belongs to the bailiff 
of a franchise (?/). But the execution of all other writs within 
a liberty belongs to the bailiff of the liberty ; thus it has been 
determined, that the bailiff of a liberty has the right to 
make inquisition and extent upon an elegit, by virtue of a 
warrant of the sheriff directed to him (2). Where a writ is to 
be executed in two liberties, viz. partly in one liberty, and partly 
in another, the sheriff should send a mandate to each (a). And 
where the writ is to be executed partly in the liberty, and partly 
in the county at large, the sheriff should direct a mandate to the 
bailiff of the liberty, to do execution for the part within his 
franchise, and should as to the residue do execution by his own 
officers (5). The duty of summoning jurors within the liberty, 
it would appear^ belongs to the officer of the franchise having 
the execution and return of writs (c). 
He is a trcs- Under a grant of a return of writs within a certain district, the 

passer lor ■^■fr• ■ 

executing a bailiff of such liberty has no power to execute process imme- 
diately (ii- diately directed to him, for he is not the known officer of the 
court, like a sheriff; and if a writ be directed to the bailiff of 
such liberty either against the body, or the goods of a party, by 
so doing the bail ifi' becomes a trespasser ((/). And if the bailiff 
of a franchise, on a writ of mesne process directed to him, arrest 
the defendant, the courts will discharge him out of custody on 
filing common bail (e). 

(9) 1 Ventr. 399, 406. others, Cro. Car. 319. 

(»•) By Stat. West. 1, c. 17; Gilb. (a) See 5 Kep. 92. 

Hist. C. 13,28; T. 11 Hen. 4, (81). (A) 14 lien. 6, 48, 67 ; Bro. Abr. 

(s) Ibid. Retorne de Briefe, 50. 

(t) Com. Dig. Ret. D. 4 ; Wiiely (c) Rex v. Jaraiii, 4 Bar. & Cies. 

V. Gunstone, 2 Rol. Abr. ; S. C. Hob, 692 ; S. C. 7 Dow. & Ryl. 

83. ((/) Grant v. Bngge, 3 East, 128. 

(?t) 19 II. 6, 67 a. lint the sherift" of a county palatine is 

(i) By analogy to tiie case of slie- not a trespasser for executing a writ, 

rifts, Dalt. 463, citing 7 Edw. 3, 56 ; directed to him in the first instance, 

Filz. Chall. 2. Jackson i'. Hunter, 6 T. R. 71. 

(v) Bro, Ret, 61 ; 14 Hen, 6, 3; (e) Bowriug v. Pritchard, 14 East, 

21 Hen. 7, 14. 289; Bracebridge v. .Johnson, 1 Brod. 

(s) Sparrow v. Matersock and Cv Bing. 12. 



OV BAIMIVS Ol' I'KANCIUSKS. 57 

By the slalute !• Hen. 1, c. 19, "no steward or bailiH', nor chap, iv. 
minister of a franchise, which have return of writs, shall be Not to be an 
attorney in any plea within the franchise or bailiwick, whereof •'"°"'ey- 
he is or shall be officer or minister in any time to come." And 
also, by rule of K. B., 1G54, s. 1, "no bailiffs of liberties shall 
be admitted, during their employment, to practise as attorneys, 
under pain of expulsion from an attorney, and not to be re- 
admitted." And, by the statute 4 Edw. 3, c. 9, and by 5 Edw. 
3, c. 4, "no bailiffs of franchises, &c., shall henceforth be, 
except he have lands sufficient in the same county, whereof to 
answer the king and his people, if any will complain (/)." 



The bailiff of a liberty should have a ^aol situated within the To i.ave a 

., , , , , ■^■li^ n n i • gaol wilhiu 

franchise. It has been considered, that the baihtt ot a tranchise his liberty, to 

, 1 n 1 r. 1 • 1 • / \ attend assizes, 

was liable to repair the gaol of the franchise at his own expensei^g) ; &c. 



but it is now held, that he is only subject to such obligation by 
immemorial usage (/<). If the bailiff of a liberty arrest a person 
on a mandate directed to him, and he convey such person to the 
county gaol, situate out of the liberty, it is an escape (i). Bailiffs 
of franchises, having the power of keeping gaols in their liberty, 
shall certify the names of the prisoners in their keeping at the 
next general gaol delivery in the county or franchise (k). 
" Bailiffs and officers of liberties, which in times past have been 
accustomed to attend justices of assize, shall attend upon the 
justices of assize, justices of gaol delivery, and justices of the 
peace for the same shire wherein such franchises and liberties 
he {I), and make due execution of all process to them to be 
directed for ministration of justice within such liberties or fran- 
chises ; and that also all such bailiffs, or their deputies or deputy, 
shall give their attendance and assistance upon the sheriff, 
together with the sheriff's bailiffs, at all courts of gaol delivery, 
from time to time, for execution of prisoners according to justice." 
Where it appeared that King Charles IT., by charter, (reciting 

(/ ) See Fitz. N. B. 164. 4.c. 14 ; and 27 Hen, 8, c. 24. See 

(ff) Bac. Abr, tit. OuD/ttfx/ C-'((ii/i'r.s, also Rex v. Jaiam, 4 Bar. & Cres. 

(B). f)92; S. C. 7 Dow. & Rvl. 

(h) Rex V. Earl of Kxeler, 6 I'. U. (l) 27 Hen, 8. c. 24, s."7. It woiild 

373. appear, that before this statute, bailiffs 

(0 Boolhnian v. Earl of Surry, 2 of francliises were bound to give their 

T. R. 5. See Jackson v. Hill, 10 attendance on the justices of assize, on 

Adol.&Eilis,491;2P.&D,455,S,C. pain of forfeiture for neglecting; so to 

(/t) 3 Hen. 6, c. 3. As to receiving do, Bro. Forf. pi. 115, cit. 20 Edw. 4, 

criminals, see 4 Edw. 3,0. 10 ; 6 Edw. fol. 6. 



58 



OF BAILIFFS OF FRANCHISES. 



Of the she- 
riff's man- 
date, and 
where he 
may enter a 
liberty to 
execute a 
writ. 



former grants of the francliise, by Philip and Mary, and by 
Charles I.,) granted the execution of all writs to Viscount Dun- 
bar, his heirs and assigns, in the liberty of Holderness, and it 
appeared that the officer had, since 1787, been in the habit of 
summoning jurors within the liberty toattend the quarter sessions, 
it was held that this evidence raised a presumption that this was 
a franchise existing at the time of passing the statute 27 Hen. 8, 
there being no evidence to the contrary : and that it was the 
bailiff's duty, on receiving the sheriff's mandate, to summons a 
sessions jury (m). 

Where a writ (without a non-omittas clause) can only be 
executed within a liberty, the sheriff should make his mandate 
to the bailiff of the liberty to execute the writ («), 

Some nice distinctions have been raised in very recent cases 
in construing warrants, how far they can be treated as mandates 
to the bailiff of a liberty, or as the ordinary warrants to a sheriff's 
officer. In Platel v. Dowse (o) an ordinary warrant directed to 
the deputy bailiff of a liberty having been acted upon as a man- 
date, it was held that the chief bailiff could not refuse to return 
the mandate, on the ground that the document was a sheriff's 
warrant. But in a more recent case {p), where a warrant of 
the sheriff of Yorkshire was addressed to the keeper of the 
county gaol, "and also to the chief bailiff of the liberty of Pick- 
ering Lythe, his deputies, and John Doe, my bailiffs," he directed 
them to take the defendants, if they should be found in the 
sheriff's bailiwick. In an action against the chief bailiff of Pick- 
ering Lythe, for an escape, it was held that this was a warrant, 
and not a mandate. Indeed, Mr. Justice Patteson said, ** I think 
that where the bailiff of a franchise is addressed as an officer 
or bailiff of the sheriff, he may waive his franchise, and act 
upon the warrant, as an ordinary sheriff's officer." 

By the statute 13 Geo. 2, c. 18, s. G, "the sheriff, at the 
request and costs of the lord of a franchise having return of 
writs, shall appoint a deputy to reside in or near the same, who, 
on receipt of process, shall, under the seal of the sheriff, issue 



(m) Rex V. Jaiam, 4 Bar. & Cres. 
692 ; 7 Dovvl. & Ryl. S. C. 
(n) See fonn, Append, c. 4. 
(o) 4 bing. N. C. 204; 5 Scott, 



549, S. C. 

(p) Jackson v. Hill, 10 Adol. & 
Ellis, 491 3 S. C. 2 Per. & Dav.455. 



OF BAILIFFS OF FRANCHISES. 



59 



his warrant to the lord of the franchise to execute the process." ^"^^' ^^- 
The statute of West. 2, c. 29, in affirmance of the common law, 
provides, that if such bailiff give no answer to the sheriffs, the 
court may grant a special warrant, with a non-omiitas (q). And 
where there are two liberties in a county, and the sheriff makes 
his mandate to the bailiff of one of them, who gives him no 
answer, he may, upon a non-omiitas, arrest the defendant in 
either liberty (r). Now, however, in practice, it is not unusual 
to issue a non-omittas writ, in the first instance, without default 
being made by the bailiff (5). As the practice of thus suing out 
a non-omiitas writ, in the first instance, to be executed in a 
liberty with return of writs, has grown into general use, it was 
decided that a party was not liable to an action, at the suit of 
the bailiff of the liberty, for so doing, although it was alleged 
that the non-omittas writ was sued out to deprive the bailiff of 
his fees {t). Although a sheriff is liable to an action, at the suit 
of the owner of the franchise, for executing a writ without a 
non-omittas clause, within a liberty having the return of writs (m), 
yet the execution, in such case, is good, and therefore the sheriff 
is not a trespasser for executing such a writ within a liberty 
within the limits of his county {x) ; so, on the other hand, if the 
sheriff arrest a person within such liberty, and suffer him to 
escape, he is liable to an action ; for although he was liable to 
an action at the suit of the owner of the franchise, for an in- 
fringement of it, yet the arrest was good {ij). Indeed, it appears 
that the bailiff of a liberty may waive his franchise ; thus, where 
he has the option of acting as bailiff of the liberty, or as the 
sheriff's bailiff, he may waive the former, and elect to act as 
sheriff's officer (~). 

As regards granting replevins, where the bailiff' of the liberty Power to 



replevy. 



(9) 2 Inst. 45:3. Mead and another, 2 Staikie, 207 ; 

(r) 5 Rep. 92 a ; 9 East, 335, 340. S. C. Holt's N. P. C. 593, Wood, B., 

(s) Canett v. Smallpage, 9 East, ruled, that a common bailiff of the 

330. sheriffexecuting a writ within a liberty, 

(t) Ihxd, was a trespasser, and that a defendant 

(at) Villa de Darby v. Foxley, 1 who resisted the bailiff, and cut hitn 

Roll. Rep. 118; 1 Venir. 406; Show, with an axe, was not guilty of mali- 

18; 5 Rep. 92 ; Fitz. N. B. 98. ciously cutting under Lord Ellen- 

(i) SpinksD. Spinks, 7 Taunt. 311; borough's act. 
Fitzpatrick v. Kelly, cit. in Rex v. (z) Jackson v. Hill, 10 Adol. & 

Stubbs, 3 Term Rep. 740 ; 5 Rep. 92. Ellis, 477 ; S. C. 2 Per. & Dav. 455 ; 

(y) P'ggott V. Wilkes, 3 Bar. & JNlunday v. Froggate, 2 Kel. 71, 117, 
Aid. 502. But in the case of Rex v. 126 ; and see also Marsh. 25. 



60 ui' RAiLiiis OF ruANcnisi;s. 

(.iiAv. IV. has tlie power of granting replevins, the sheriH'cannot enter the 

liberty and grant replevins and make deliverance, indess there 

has been a default in the bailiff' of the liberty («) Before the 

statute of Marlbridge, 52 Hen. 3, the sheriff" could only grant 

replevin upon a writ of replevin issuing out of Chancery (h). The 

power of granting replevins is conferred by the 21st chapter 

of that statute. 

The bailiff's After the bailiff' of a liberty lias received the sherift"s man- 
power and •' 
duties within c]ate, he is to execute the same witliin his liberty, in the same 

his liberty. ... ... 

manner as the sheriff" is bound to execute it in the county at 
large. By the statute 27 Men. 8, c. 24, s. 14, " all other statutes 
made before the 4th February, in that year, against sheriffs, or 
their under-sheriffs, bailiffs, or other ministers (/or maJcing or 
returning any juries, serving of any writs, taking of fees, for ex- 
tortions, or for any thing concerning Iheir offices^ ; and all pains 
and penalties in every such statute contained, shall be in force 
against and extend to all stewards, bailiff's, and other ministers 
and officers of liberties and franchises having returns of writs 
and executions thereof, in like maimer as they extend to sheriff's, 
under-sheriflTs, &c. ; as if the said stewards, &c. had been par* 
ticularly named therein," saving that the said stewards and 
bailiffs of franchises, their deputies or clerks, may occupy their 
offices above one year, viz., for so long time as they be given to 
them. Since that act, usually all the acts of parliament and 
rules of court, regulating the manner in which writs are to be 
executed, or the fees to be taken thereon, in terms extend to 
bailiff's of franchises. If the bailiff' of a liberty arrest a person, 
he should imprison him within the liberty, for if he convey a 
prisoner to the county gaol, situated out of the liberty, it is an 
escape (c); and if the bailiff' take a bail-bond from a person in 
his custody on mesne process, the bail-bond should be given to 
the bailiff', and not to the sheriff" (J), 
ketuni or By Stat. 27 Hen. 8, c. 24, s. 9, " The amercement for insuffi- 

iTabiiit''/Jf"'' cient returns made by stewards and bailiff's of franchises shall be 
set on the head of such bail iflfs and stewards, and not on the 
sheriffs.'" The responsibility of the sheriff' in executing a writ 

(a) Mounsy v. Dawson, 6 Ad. 5t J'. R, 5. 

Ellis, 752 ; 1 Nev. & Per. 763, S. C. (r/) Keld v. Harding. Com. Rep. 

(6) 2 Inst. 139,140, 194; Gilb. 378; per Euller, J., 1 T. R. 4. Sed 

Replevin, 81 , 85 b. vkh Dalt. 460. 

(c) Bootliman v. Earl of Surry, 2 



OF BAILIFFS OF FRANCHISES. fil 

ceases on making his mandate to the bailiff'; and his return chap. iv. 
mandavl baUico witli the bailiff^'s return, or by stating that the ' 

bailiff'hath made no return, is sufficient to discharge the sheriff. 
But it is said, that if the sheriff" return mandavl ballivo, who an- 
swered some matter which is insufficient as a return, the sheriff" 
shall be amerced, for the bailiff''s return, in such case, is no 
return, and the sheriff' should have returned ymllnm dedit respon- 
siim (e). It is said, that if the sheriff' return mandavi hall'ivo to a 
writ, which he should execute within the liberty himself, as a 
writ of inquiry in waste, the sheriff" shall be amerced (/). 

And if the sheriff" return that he has made his mandate to the 
bailiff" of a liberty, when in fact there is no such liberty, he is 
amenable to the party and to the queen {g). 

The sheriff^'s mandate always requires that the bailiff" shall 
make his return to the sheriff"; but in practice, the bailiffs make 
their returns directly to the court. The bailiff" should put his 
name to the return (/«). 

And when the bailiff"s return is made to the court, the bailiff" 
is alone responsible ; thus, when he returns ccpi cotyus, to a writ 
of mesne process, he shall be immediately ruled to bring in the 
body, and on failing so to do, the bailiff", and not the sheriff", 
shall be attached (i). Where the sheriff' issues his mandate to 
the bailiff" of a liberty, to summon a jury to attend tlie quarter 
sessions, the sessions has the power of fining the acting bailiflf 
for not complying with the mandate (/-). If the sheriff return 
the answer of the bailiff which is false, an action lies against the 
bailiff' for the false return, but not against the sherift'(/). But if 
the sheriff alter the return of the bailiff of a franchise, he shall 
answer to the queen and to the bailiff' of the franchise (?«)• If> 
after the delivery of the mandate to the bailiff of a franchise, he 
die or be removed, and a new bailiff succeeds before the return, 
the new bailiff should make the return («), and where, under those 
circumstances, the sheriff returned the answer of an old bailiff, 

(e) Roll. Ahr. ill. Relorn (M). I, (I) Jackson i'. Hill, 10 Adol. & 

2, 3, 4, 5; 3 Hen. 7; 12 Bro. /?<-- Kliis, 477; 2 Ter. & D. 455, S. C. ; 

torn, 87. 2 Roll. Abr. 461, !. 35 ; 1 Roll. Abr. 

(/) Fitz. lietoni, 53. 98, I. 37 ; lb. 99, 1. 30. 

(g) See Stat. West. 2, s. 39. (in) 2 Roll. Abr. 563, 1. 25 ; Dalt. 

(h) 12 Edw. 2. c. 5. 461. 

(0 See 2 T. R. 5 ; T. Raym. 193. («) 14 Edw. 4, fol. 1 b ; 6 Vin. 

(k) Rex V. Jaram, 4 Rar. & Cres. Abr. Return, 213 ; Bio. Abr. Retorue 

692 ; S. C. 7 Dowl. & Ryl. de Brief e, 99. 



6^ OF BAILIFFS OF FRANCHISES. 

CHAP. IV. which was false, it was holden tliat no action lay against the old 
bailiff for such answer, for it was the return of a mere stranger (n). 
The bailiff is, of course, liable to an action on the case (o) for 
the escape of a prisoner out of his custody (p). The removal 
of a prisoner out of the liberty, we have seen, even to the 
county goal, without a habeas corpus, is an escape (9). If the 
sheriff return the bailiff's answer falsely, the bailiff is respon- 
sible, and must seek his remedy over against the sheriff (r). 

The sheriff's return does not conclude a party in an action 
against the bailiff of a liberty. Thus, if the bailiff be guilty of 
an escape, a return o^ cep'i corpus by the sheriff is no bar to an 
action against the bailiff of the liberty for an escape; for the 
return does not operate as an estoppel in such action (s). 
Feesand As to the fees and poundage to which the bailiff of a fran- 

pound.ige. , . . • i i i 

chise m entitled, see post, chapter 5, section 5. 

(n) Palmer v. Marsh, 1 Roll. Abr. (5) Boothman v. Earl of Surry, 2 

99, 1. 35. It is there said, that an ac- T. R. 5. 

lion would have lain against the sheriff (r) Shaw i;. Simpson, 1 L. Raym. 

for making such a return. 184. 

(0) See 5 & 6 Vict. c. 98, s. 31. (s) Jackson v. Hill, 10 Adol. & 

(p) Boothman D. Earl of Surry, 2 Ellis, 488; S. C. 2 Per. & Dav. 

T. R. 5. 455. 



( 63 ) 



CHAPTER V. 

OF THE EXECUTION AND RETURN OF WRITS IN GENERAL. 

Sect. I. — Of the Direction of Writs. — To what Sheriff, 8fc. — 
Sheriff, S)'c. hound to execute, and justified in the 
execution of all Writs directed to him. 

II. — How, where, and when the Sheriff may execute Writs. 
— Warrants to Officers. — )Vhcn Officer maij break 
open Doors. — Raising the Posse Comitatus. — Where 
Writ may be executed. — When, Sunday. 

III. — Rule to return the Writ. — When granted. — The Rule. — 
Attachment, when and how granted for not returning 
the Writ. 

IV. — The Return. — By whom made. — Form of the Return. — 
Must be certain. — Must he a complete answer. — Must 
not falsify the Record. — How aided. — When amended. 
■ — When conclusive. — Particular Returns. — Tarde. 
— Languidus. — Rescue. — Rescuers, how punished. — ■ 
Mandavi ballivo. 

V. — Sheriff's Poundage and Fees on executing and return- 
ing Writs, on Fi. Fa. ; on Ca. Sa. ; on Extents ; 
on Eligit; Habere facias possessionem. — Who to 
Pay. — Ho7v recovered. — Extortion. 

Vi. — Actions against the Sheriff". — At the Suit of the Plain- 
tiff. — At the Suit of the Defendant.— Justification by 
the Sheriff, <^c. — Evidence. 



Section I. 
Writs, to whom Directed. 
All mesne and iiidicial writs are directed to the sheriff of the Writs, to 

... 1 . 1 • • J whom di- 

county m which they are to be executed ; or, in certain excepted reeled. 



64 WRITS, TO WHOM DIRECTED. 

CHAP. V. cases, which shall presently be mentioned, to some officer on 
^'-'^'''- '• whom the performance of the duties of sheriff for the particular 
place is imposed by law. And, as a general rule, the writ 
should be directed to the person or persons who are bound to 
execute it, and not in the alternative, "To A. or 1j."(«). If 
the sheriff be a party, the writ sliould (except in the case of mere 
serviceable process (6) ) be directed to the coroner (c), in which 
case the officer executing the writ is the servant of the coroner, 
not of the sheriff(c^). If there be two sheriffs, and one of them 
be a party to, or interested in, the suit, the writ should be di- 
rected to the other, and not to the coroner (e). But it is other- 
wise where one of two sheriffs dies ; for in that case it is said, 
that the writ should not be awarded to the survivor (y). If the 
coroner also be a party, then the writ should be directed to 
elisors, named for that purpose by the Master (§■). When there 
are more than one sheriff, as in the county of Middlesex, they 
should be addressed by the writ in the plural number ; and 
a direction to the " sheriff," instead of " sheriffs," would be 
faulty (/i). And vice versa, where two or more persons constitute 
but one officer, as in the city of London, the writ should address 
them in the singular number, and it would be incorrect to style 
them " sheriff*," instead of " sheriff" (i) ; though there is a case 
in which the Court of Exchequer refused to set aside a writ so 
directed (//•). The county should be correctly stated; but such 
a trifling error as " Middesex" for " Midd/esex," does not, it 
seems, vitiate the writ (/). 
In a libeity. In the execution of writs, the sheriff is the known, public, and 

(a) See R. V, Fowler, 1 Ld. Raym. (g) Andrews r. Sharp, 2 Blac. Rep. 

586. 911 ; see Mayor of Norwich v. Gill, 

(ft) Mayor of Kingston v. Bubb, 1 1 Dowl. 246; I M. & Scott, 91 ; 8 

Dowl. 151. Bing. 27. S. C. 

(c) Western v. Coulscn, 1 Black. (/;) Jackson v. Jackson, 3 Dowl. 
Rep. 506. And if directed to the 182; 1 C. M. & R. 438, S. C. 
sheriff, the court will set aside the writ, (i) Nicol v. Boyne, 2 Dowl. 761 ; 
on affidavit that he is interested. 3 M. & Scott, 812; 10 Bing. 387, 

(d) Sarjeant V. Cowan, 1 C. & M. S.C; Barkery. Weedon,2Dowl. 767 ; 
491, Ulugh V. Kingswood, 1 Lord Ken. 

(e) Letsom v. Bickley and others, 287. 

5 Maule & Sel. 144; Rex v. War- (k) Clutterbuck v. Wiseman, 2 C. 

rington, Salk. 152; S. C. 4 Mod. 65 ; & J. 213 ; and see Anon. 1 Tidd, 149. 

12 Mod. 22; Carth.214; Comb. 191; (/) Colston v. Berens, 1 C. M. & 

1 Show. 327; Rich I'. Player, 2 Show. R. 833; 3 Dowl. 253, S. C. over- 

262, 286. ruling Hodgkicsoa v. Hodgkinson, 2 

(/) 4 Mod. 65; Curie's case, 11 Dowl. 535. 
Rep. 4 ; sed queer e. 



WRITS, TO WHOM DIRECTED. 65 



CHAP. 

SECT. 



responsible officer of the court, whose process he is bound to 
execute, and is justified in the execution of. A bailiff of a 
liberty, we have seen, does not derive his authority to execute 
a writ within his liberty immediately from the court, for he is 
not the officer of the court; therefore if the bailiff of a liberty, 
who hath execution and return of all writs therein, arrest a de- 
fendant on process immediately directed to him, he will be a 
trespasser (w). The writ should, in such a case, be directed to 
the sheriff of the county, who provides for its execution in the 
manner already pointed out in the fourth chapter. For instance, 
in the Isle of Ely the writ is directed to the sheriff of Cambridge- 
shire (?j), and in the borough of Southwark to the sheriff of 
Surrey (o). 

Writs, either on mesne process or in execution, should not be in the coim- 

ii'<v>/. 1 • ■ ^• 1 I • ''*'' palatine- 

directed to the sheriff of a county palatine immediately ; but in 

the county palatine of Lancaster to the chancellor of the county 
palatine, or his deputy there, commanding him, by writ under 
the seal of the county palatine, to command the sheriff of such 
county palatine to execute the writ (p). And the same in the 
county palatine of Durham, since the act of G & 7 Will. 4, c. 
19, by which the palatinate of Durham has been transferred 
from the bishop to the crown, as a separate franchise and roy- 
alty (p). As to the county palatine of Chester, however, the 
writ is now directed to the sheriff of the county in the first 
instance, the act of 1 1 Geo. 4, c. 70, s. 1 4, having abolished the 
jurisdiction of the chamberlain, to whom writs were formerly 
directed (q). The chancellor should not be directed to execute 
the writ himself, but only to command the sheriff to execute it ; 
a writ commanding the chancellor to execute it himself would 
be a nullity (r). And as it is irregular to direct a writ in the 
first instance to the sheriff of a county palatine, the court, on 
motion, will set aside a writ so directed, and all proceedings 
thereon (s) ; but the sheriff of a county palatine is not a tres- 
passer for executing a writ immediately directed to him ; and it 

(m) Grant v. Bagge and others, 3 (p) See 1 & 2 Vict. c. 110, s.3. 

East, 128. Or the Court will set aside (7) See slat. 9 & 10 Vict. c. 44. 

the writ on motion, Bowring i'. Prit- (r) Branbridgeu. Johnson, 3 Moore, 

chard, 14 East, 289. 237 : 1 Bred. & B. 12, S. C. 

(h) Grant v. Bagge, 3 East, 128. (s) Bradshaw v. Davis, 1 Chit. R. 

(o^ Bowring i'. Pritchard, 14 East, 374. 
289. 



66 



EXECUTION AND RETURN OF WRITS. 



CHAP. V. 
SECT. I. 



Ill (he Cinque 
Ports Ber- 
wick, «Jtc. 



In coiinliea 
of cities and 
boroughs. 



In places sur- 
rounded by 
another 
county. 



has been lioldcn, that a bail-bond given by a defendant, arrested 

by the sheriff of Durliarn by virtue of a writ directed to him, 

was good(^). 

Writs to be executed in the Cinque Ports should be directed 

to the constable of Dover Castle, his deputy, or lieutenant (m) ; 

in Berwick-upon-Tweed, to the mayor and bailiffs of that 

borough (unless where the process is merely serviceable) (*') ; 

for the Cinque Ports do not form part of the bailiwick of the 

sheriff of Kent {x), and Berwick was never annexed to any 

county (?/). 

In cities and towns which are counties in themselves the writs 

should be directed to the sheriff or sheriffs, as the case may be, 
of the city or town. But in those which are not counties in 
themselves, the writ should be directed in the same way as in 
other parts of the county in which they are situate. And the 
Municipal Corporation Act (5 & 6 Will. 4, c. 76,) has made no 
difference in this respect ; for instance, in Oxford the writs 
must still be directed to the sheriff of Oxfordshire (s), and the 
same in other cities and boroughs not counties in themselves ; 
thus we have seen that even in the borough of Southwark, 
though a liberty, and having a bailiff, writs must be directed to 
the sheriff of Surrey (a). 

In " districts and places parcel of some one county, but wholly 
situate within and surrounded by some other county," much in- 
convenience and delay formerly occurred in the service and 
execution of process ; to remedy which it has been enacted by 
2 Will. 4, c. 29, s. 30, " that every such district and place shall 
and may, for the purpose of the service and execution of every 



(t) Jackson v. Hunter, 6 T. R. 71 ; 

Needham v. Dennet, SirT. Raym. 171 ; 
3 I'Last, 134; Cliapman v. RJaddison, 
2 Sir. 1089 ; And. 198, S. C. ; R. T. 
21 Car. 1. 

(u) Williams v. Gregg, 2 Marsh, 
550 ; S. C. 7 Taunt. 233, in which 
case interlocutory judgtnent and all 
proceedings were set aside, on the 
ground that the writ, which was served 
in Deal, within the Cinque Ports, was 
directed to the sheriff of Kent. A 
direction " I'd the Constable of the 
Castle of Dover," instead of" Dover 
Castle," is not irregular. Frank v. 
James, 5 Dowl. 723. 



(v) See 2 Burr. 855. In a case 
where the mayor, &c. of Berwick were 
the plaintiffs, the Court of Common 
Pleas refused to set aside the service 
of a capias ad respondendum, on ap- 
plication being made on the ground 
that the writ should have been directed 
to elisors. Mayor of Berwick v, Wil- 
liams, 10 Moore, 266. 

(a) See Williams v. Gregg, 2 Marsh. 
Rep. 550 ; S. C. 7 Taunt. 233. 

{y) See 2 Burr. 850 et seq. 

(z) Granger ti. Tauntoti, 5 Dowl. 
190; 3 Bing. N. C. 64, S. C. 

(a) Bowring V. Pritchard, 14 East, 
289. 



WRITS TO WHOM DIRECTED. 



67 



writ and process (whether mesne or judicial) issued out of either chap. v. 

of the superior courts at Westminster, be deemed and taken to — !i^_Ll_ 

be part as well of the county wherein such district or place is so 

situate as aforesaid, as of the county whereof the same is parcel; 

and every such writ and process may be directed accordingly 

and executed in either of such counties." But this enactment 

does not apply where the place so surrounded is a county of 

itself; for instance, in the case of a county of a borough which 

is a county in itself, the writs must be directed to the sheriff of 

the borough, not the sheriff of the surrounding county (b). 

When a writ is delivered to the sheriif, he is hound to execute J'^^bat wru _^ 
it. accordino- to the exigency thereof, without inquiring into the bom.d to exe- 

' o D J ' ••11 1 ciite, alio III 

reo-ularitv of the proceeding whereon the writ is grounded ; and wi.ai cases 

o J 1 o ,1111 protected. 

it will be found, by a variety of cases, that although the process, 
under which the sheriff takes the person or goods of the defendant, 
be voidable (c), or erroneous, and of which the defendant might 
have availed himself in the original action, yet such writ is a 
sufficient justification (d!) for the sheriff in an action of trespass 
brought against him, for the sheriff is a ministerial officer in the 
execution of writs, and is not to examine their legality. So, on 
the other hand, in an action for an escape, or for a false return, 
brought against a sheriff, he cannot show that the process under 
which he acted was erroneously awarded (e). But this position 
is not universally true ; for if a sheriff pays over money levied 
under aji.fa., with notice that the judgment on which the f. fa. 
issued was fraudulent, he will be liable to a subsequent execution 
creditor for the amount(/). And a distinction prevails between 
cases where the court acts inverso ordine, by issuing irregular 
process, or the like, and where there is a total want of jurisdiction 
in the court; for the sheriff, in executing the process of a court 
not having jurisdiction over the cause, would be a trespasser (/). 
Upon the rule, that the sheriff is justified in the execution of 
erroneous process, it was held, that if a cajnas be awarded 
against a duke, earl, or other person having privilege of peerage, 

(6) Davis V. Sherlock, 7 Dowl. 530. v. Bouchier, Sir. 993; Odes v. Clarke, 

(c) Parsons u. Lloyd, 3 Wills. 345; 1 L. Raym. 397; S. C. 5 Mod. 413; 

2 Keb. 705. Brown v. Complon, 8 T. R. 424 ; 

{(l) Cro. Jac. 280, 289 ; 2 Saund. Thomas r. Hudson, 14 M, & W. 364. 

100; Cro.Eliz.271; ib. i66, contra. (/) WarmolU'. Young, 5 B. & C. 

(e) Case of the JNIarshalsea, 10 663; Imray u. Magnay, 11 M. & W. 

Rep. 76 ; Bowsar v. Collins, 22 E. 4, 267. 
33 b, there cited, Poph. 203 ; Smith 

F 2 



68 EXECUTION AND RETURN OF WRITS. 



CHAP. V. 
SECT. I. 



against vvlioni a capias, by the law, doth not He, notwithstanding, 
as the court hath jurisdiction of the cause, the sheriff is ex- 
cused (g'). So if a sheriff arrest a person upon ca. sa., in which 
a whole term intervenes between the teste and the return ; yet 
this writ is a justification to the sheriff(/j). So the sheriff is 
justified in arresting a person upon a writ tested out of term. 
So if a ca. sa. be taken out after the year without a set. fa., and 
the defendant be arrested thereupon, and after suffered to escape, 
an action lies for this escape, though the process was erroneous ; 
for the sheriff was bound to execute the writ, and therefore 
cannot let him at large {i). And so in an action for rescuing a 
debtor in custody upon mesne process sued out of the palace 
court, it was decided that it was not a sufficient ground to arrest 
the judgment, that it was not alleged that the cause of action in 
the inferior court arose within the jurisdiction, or, that it was 
not alleged that the party below did not appear on the return of 
the wr\t{k). The distinction between the erroneous judgment 
of a court having jurisdiction, and the want of jurisdiction, is 
thus illustrated by Dalton : " If the justices of peace arraign a 
person of treason in their sessions, who is convicted and exe- 
cuted, this is felony as well in the justices as in the sheriffs or 
officer who executed the sentence ; but if he had been indicted 
of a trespass, found guilty, and hanged, though this had been 
felony in the justices, yet it would not be so in the sheriff; be- 
cause a matter in which the justices had jurisdiction, and which 
they only were to blame in exceeding their authority" (/). And 
where, in debt against a sheriff for the escape of one in execu- 
tion, the declaration very unnecessarily stated, that A. obtained 

(g) Isabel Countess of Rutland's Wils.255; Luttin tJ.Bennia, 11 Mod. 

case. 6 Rep. 54. See also 10 Rep. 76. 50; Salk. 201; 1 Roll. Abr. 809; 

(/i) Parsons v. Lloyd, 3 Wils, 341 ; Squibb v. Hole, 2 Mod. 29 ; Higgin- 

S. C. 2 Blac.Rep. 845; Plucknet r. son v. Martin, 2 Mod. 195; see I 

Grenes, 2 Keb.705; Shirley D. Wright, Vent. 369; 2 Lut«. 1.569. From 

Lord Raym. 775; S. C. 2 Salk. 700; these cases it is to be collected, that 

Nector v. Gennett, Cro. Eliz. 466 ; if it appeared in the declaration that 

Wooden w. Moxon, 6 Taunt. 490 ; S. the original cause of action did not 

C.2Marsh.l86. Q)(. in case of mesne arise within the jurisdiction, then the 

process, see Willet i;. Archer, 1 Man. sheriff would not be liable for the 

& Ry. 317. escape. 

(i) Bush's case, Cro. Eliz. 188. (/) Dallon's Sheriff, 197. And if 

See also Ognell v. Paston, Cro. Eliz. the Q. B. issues process in a real ac- 

165 ; Keiser v. Tyrrel, 2 Bulstr. 256; tion, the sheriff should not execute it, 

1 Salk. 273. for there is a want of jurisdiction. 2 

(k) Bentley v. Donelly, 8 T. R. Bulstr. 64 ; Ualt. 105. 
127. See also Bull v. Steward, 1 



SHERIFF BOUND TO EXECUTE WRITS, &C. 69 



judgment in K. B. against B., who afterwards died intestate, 
and the plaintiff took out administration by an inferior ordinary, - 
namely, the archdeacon of B. and brought a scire facias upon 
that judgment, to which he had judgment to have execution, 
and thereupon a ca. sa. issued against B., upon which he was 
taken, and in custody of the defendant, who was sheriff, &c., 
and afterwards escaped ; and upon nihil debet pleaded, and a 
verdict for the plaintiff, it was moved in arrest of judgment that 
it appeared in the declaration, upon the plaintiff's own showing, 
that the administration was granted by a peculiar jurisdiction, 
whereas it likewise appeared that the intestate had bona notabilia 
in another diocese, namely, the judgment at Westminster ; for 
which reason the administration granted by a peculiar jurisdic- 
tion by the archdeacon, was merely void ; and then an action of 
escape would not lie against the sheriff, for the escape of a pri- 
soner taken upon a void judgment; for if there were no judg- 
ment ao-ainst B., there was no cause to detain him in prison. 

-1 
To which it was answered, and so resolved, that it was only 

error, of which the sheriff could not take advantage in an action 
for an escape brought against him ; and the difference was 
where the judgment was merely void, or where it was only 
erroneous ; and that depended on another distinction, namely, 
where the court in which the judgment was obtained had cog- 
nizance of the cause and where not ; for, in the first case, if the 
plaintiff obtain a judgment, and by his own showing had no 
cause of action, yet because the court had jurisdiction of the 
cause, this is only an erroneous and not a void judgment ; but it 
is otherwise where the court had no jurisdiction of the cause; 
but in the present case the court had cognizance of the cause, 
and therefore the matter was only error (in). But it does not 
follow that the sheriff is bound to detain a person in his custody, 
in every case where he would be justified in so doing ; thus, 
where the defendant is privileged from arrest, the sheriff would 
not be liable to an action for discharging him, although he would 
be justified in detaining him (?0. So if a person was arrested 
by the sheriff on the old process of latitat, in which a term in- 
tervened between the teste and return, and was discharged, the 
sheriff was not liable to an action of escape, notwithstanding he 

(m) Gold V. Strode, 3 Mod. 324 ; («) See next chap. post. 

S. C. Canli. 148. 



CHAP. V. 
SECT. I. 



EXECUTION AND RETURN OF WRITS. 



CUAl". 

SECT. 



would be justified in executing such process (o). If tlie sheriff 
be ordered to return non est inventus to a ca. sa., and in the 
meantime the defendant siu-renders, he is bound to take him(p). 
Whenever a writ of mesne i^rocess is delivered to a sheriff, 
wherein the defendant is sued by a wrong name, the sheriff 
should not execute it, for in such case, even if the defendant was 
known by that name, or had assumed it in the particular case, 
so as to afford a sufficient justification to the sheriff in acting 
under it, yet he would not be liable to an action for not execut- 
ing it ((^). Whereas on the other hand, unless the defendant 
was as commonly known by the name by which he was sued 
as his real name, the sheriff would be liable to an action of 
trespass for taking the defendant or his goods under it (r). But 
the sheriff is bound to execute a ca. sa. in which the defendant 
is misnamed, for the defendant should have pleaded in abate- 
ment, and by not doing so he has admitted the name by which 
he is sued to be his real name («). 



Section II. 

How, where, and when the Sheriff may execute a Writ. 

When the writ is delivered to the sheriff, or at the under- 
sheriff's office, the sheriff may personally execute the writ {t). 
So the under-sheriff, without a warrant, may execute the writ 
in person, for he is the known and responsible officer of the 
sheriff, and by his appointment clothed with all the powers of a 



(o) Shirley v. Wright, Lord Raym. 
775 ; S, C. 2 Salk. 790 ; Nector v. 
Gennet, Cro. Eliz. 476. See also 
Eden v. Lloyd, Cro. Eliz. 877. Qiuere 
as to the justification, Willet v. Arthur, 

1 Man. & Ry. 317. 

(p) Magnay u. Mongor, 1 Dav. & 
M.24; 4 Q. 15. 847, S. C. 

(q) Morgans v. Bridges, 1 Bar. & 
Aid. 647 ; and see Keisar v. Tyrrell, 

2 Bulstr. 256. 

(r) Cole V. Hindson, 6T. R. 234 ; 
Shadgett v. Clipson, 8 East, 328; 
Price V. Harwood, 2 Camp. 108 ; 
Scondover v. Warne, 2 Camp. 270 ; 
Finch i;. Cocken, 2 C. M, & K. 196 ; 
Hoye V. Bush, 2 Scott, N. R. 86 ; 



Brunskill w. Robertson, 9 Ad. & El. 
840; 2 Per. & D. 269, S. C. See 
Jarraain v. Hooper, 6 Man. & Gr. 
827. 

(s) Crawford v. Satchwell, Stra. 
1218; Smith u.PaUen, 6 Taunt. 115; 
1 Marsh. 474, S. C. ; Reevesu.Slatter, 
7 B. & C. 486 ; Fisher v. Magnay, 1 
Dowi. & L. 48. 

(0 See per Liltledale, J., Rose v. 
Tomblinson, 3 Dowl. 49, where the 
warrant varied from the writ, and Lit- 
tledale, J., expressed an opinion that 
the sheriff might justify under the 
writ, though the warrant were wrong. 
And see R. v. Fowler, 1 Lord Raym. 
586. 



SECT. II. 



HOW SHERIFF MAY EXECUTE A WRIT. 71 

general deputy (u). And it is laid down in Dalton (a;), that the chap 
sheriff may command his servant by word only (without precept 
in writing) to serve or execute any process, and it is good, and 
any stranger may justify by command of the sheriff any seizure 
of any goods or the taking of the defendant's person, without a 
warrant ; but it is conceived that this only applies where the 
sheriff is himself acting personally in the execution of the pro- 
cess (y), and then, certainly, any person at his request may assist 
him without a warrant (s). But where a warrant is directed to 
a bailiff to execute a writ, the bailiff cannot depute the execution 
of it to another person (a) ; yet it is not necessary that his should 
be the hand that executes the writ ; it is sufficient if he be near, 
and acting in the execution of such writ (6). 

As soon as the writ is delivered at the sheriff's office, the or the w.n. 
under-sheriff makes out a warrant to one or more bailiffs for the officer^ 
execution of the writ, in the name and under the seal of the sheriff. 
The warrant must be according to the nature of the writ, com- 
manding the officer to obey the mandatory part of the writ: but 
if there be a recital in the writ, it need not be inserted in the 
warrant (c). It need not specify the court out of which the writ 
issued ((/). By the stat. G Geo. 1, c. 21, s. 53, no high sheriff, 
under-sheriff, their deputies or agents, shall make out any war- 
rants before they have in custody the writs upon which such 
warrants ought to issue, on forfeiture of 10^. ; and by s. 54 of 
the same act, (after reciting the stat. 5 & 6 W. & M. c. 21, s. 4; 
9 & 10 Will. S, c. 25, s, 42, which require the time of signing 
any writ on mesne process to be indorsed thereon by the clerk 
who signs the same,) every warrant upon any writ before judg- 
ment to arrest any person shall have the same day and year set 
down thereon as shall be set down on the writ itself, under for- 
feiture of 10/., to be paid by the person who shall fill up or de- 
liver out such warrant. If the warrant be directed to two or 

(it) Dalt. 103. Sqq tinte, p. 35 e« 149; Pearson v. Yewens, 5 Bing. 

seq. N. C. 489 ; Collins v. Yewens, 10 

(i) Page 103, citing Bro. Faux Im- Ad. & El. 570. 
prisonmetit, 43, Tresp, 339. (fo) Blatch v. Archer, Cowp. 63. 

(v) Butsee per Littledale, J., Rose (c) Dalt. 117. For different forms 

V. Tomblinson, ubi supra ; and see see Append. Blank printed forms of 

Ilamor v. Lord Jermyn, 1 Ld. Raym. warrants may be had at all the law 

190. stationers. 

(z) Drakeu. Sykcs, 7 T. R. 113. (d) Astley v. Goodyer, 2 Dowl. 

(<r) Lamb. 91 ; Dalt. 103 ; and 619 ; 2 C. & M. 682 ; 4 Tyr. 414. 
sec Robinson v. Vcwens, 5 M. & W. 



EXECUTION AND RETURN OF WRITS. 

more jolnl.li/ and severally, it may be executed by any one or 
more of them, for as it is for the administration of justice, and 
for the public good, that execution be made, the authority need 
not be strictly pursued (e). But if the warrant be directed to 
several haWiffs joint li/, but not severally ^ all must be acting in the 
execution of the writ, and if executed by one, his acts are ille- 
gal/). If the bailiff make an arrest or execute a writ before 
the warrant is issued, he is a trespasser, and a warrant subse- 
quently directed and delivered to him will not legalize his 
acts {g). A bailiff is not bound to receive a warrant sent him 
by post in a letter, the postage of which is unpaid {h). If the 
warrant be directed to one person, and he inserts the name of 
another bailiff, or if the place for the name be left blank, and 
the name inserted after it is issued (i), the person whose name 
was so substituted would be a trespasser for taking the defend- 
ant or his goods under such a warrant {j). And by the stat. 
9 Geo. 2, c. 23, s. 22, " every warrant that shall be made out 
upon any writ, process, or execution, shall, before the service or 
execution thereof, be subscribed or indorsed with the name of 
the attorney, cleric in court, or solicitor, by whom such process, 
&c. shall be sued forth." But the not subscribing or indorsing 
the name on any warrant, &c. shall not vitiate the same ; but 
such writ shall be valid and effectual, provided the writ whereon 
such warrant is made out be regularly subscribed or indorsed ; 
and every sheriff or other officer, who shall make out any war- 
rant upon any writ, process, or execution, and shall not sub- 
scribe or indorse thereon the name of the attorney, clerk in 
court, or solicitor, who sued out the same, shall forfeit 51., to 
be assessed as a fine by the court out of which such writ, &c. 
shall issue ; one moiety to his majesty and the other to the per- 
son aggrieved (k). The fees allowed for making out warrants 
will be found in a subsequent section (/). 

(e) White v. Wiltshire, Palm. 52 ; (i) Housin v. Barrow, 6 T. R. 122. 

S. C. 2 Roil. Rep. 137 ; Dalt. 351 ; (/) Burslem v. Fern, 2 Wils. 47; 

Lasbroke's case, Hutt, 127 ; Rex v. see Robinson v. Yewens, 5 M. & W. 

Hobbs, Yelv. 25; S. C. Cro. Eliz. 149; Pearson t). Yewens, 5 Bing. N.C. 

913; Co. Litt. 181 b. 489; Collins v. Yewens, 10 Ad. & 

(/) Boydi;. Durand,2Taunt.l61. El. 570. 

{g) Greene v. Jones, 1 Saund, 295, {k} 12 Geo. 2, c. 13, s. 4. 

n. 5; Hall v. Roche, 8 T. R. 187. (/) Page 103. See Dew v. Par- 

{h) Hart o. Weatherby, 4 Dowl. sons, 2 Bar. & Aid. 562 ; S. C. 1 Chit. 

171. Rep. 295. 



HOW SHERIFF MAY EXECUTE A WRIT. 73 

If a sheriff, having a good writ, make an ill warrant, it seems chap. v. 
he may justify under the writ, but not the bailiff(»i). ^^^^' "' 

It is said, that in executino; a writ, a sworn and known officer. Erroneous 

_ .... warrant. 

be he sheriff, under-sheriff, bailiff, or serjeant, need not show showing 
his warrant or writ when he cometh to serve it upon any man's "^"^° • 
person or goods, although the party demandeth it (??) ; but that 
a special bailiff must show his warrant, if the party demands it, 
otherwise he need not obey it. And it is not clear but that 
every bailiff must do so (o). And even a known officer, upon 
the arrest, ought to declare the contents of his warrant ; at 
whose suit he makes the arrest ; out of what court ; when re- 
turnable ; to the end that, if it be upon an execution, he may 
pay the money, and so free his person ; or if on mesne process, 
that he may put in bail, or agree with his adversary (p). And 
if a bailiff make an arrest before the writ comes to the sheriff's 
hand, or before the warrant is made upon it, the bailiff is a tres- 
passer (q). 

Before the statute of Westminster, the sheriff or his officers Of raising the 

. , , • 1 1 • 1 posse comita- 

might have raised the posse comitalus to execute the process tus. 
issuing from the king's courts, and by that statute (West. 2nd, 
cap. 39) it is provided : " That the sheriff, as soon as his bailiffs 
do testifie that they found such resistance, forthwith all things 
set apart (taking with him the power of the shire) he shall go 
in proper person to do execution." This statute only applies to 
writs of execution, and therefore in executing mesne process, 
although the sheriff may, yet he is not compelled to raise the 
posse comttatus (j). In raising the posse comitalus the sheriff 
may command every one above the age of fifteen, and below the 
rank of a peer, to assist him ; and persons acting, when the 
sheriff raises the posse on writs of execution, are justified, al- 
though there was no absolute necessity for raising it(s). But 
the sheriff should not raise the posse comitatus unless resistance 
is first shown (<). When the sheriff raises the posse, he is to 

(m) Rex V. Fowler, I Lord Raym. (q) Greene u. Jones, ISaund. 299, 

586 ; Rose v. Tomblinson, 3 Dowl. note 5. 

49; WilliamsD.Lewis, I Chit.R.611. (r) Noy, 40 ; 1 Stra. 432 ; Cro. 

(?n Mackalley's case, 9 Rep. 69, Jac. 419 ; 1 Roll. Rep. 440. 

Qlh Reiobttion; Dali. 109, 110, 111. (s) Dalt. 355; 5 Hen. 7, 4, 5. 

(o) Hall V. Roche, 8 T. R. 188; (t) 2 Inst. 454 ; Hob. 62. 264. It 

and see Robins v. Hender, 3 Dowl. wouldappear thai a warrant to execute 

543. a writ is a sufficient authority to the 

(/)) Mackalley's case, 9 Rep. 68 ; sheriff's officers to raise the jwsse comi- 

the Countess of Rutland's case, 6 talus, if necessary, Dali. 355, 356. 
Rep. 54 a. 



74- EXECUTION ANC RETURN OF WRITS. 

CHAP. V. judge of the force requisite, and for that reason the court, in one 
_f^;^Ilij_ case, would not declare three hundred men to be excessive (m). 
There are several particular statutes respecting the sheriff quel- 
ling riots in some bad parts of the metropolis, but by the change 
of times these have become obsolete (u). At this day, when the 
sheriff raises the jiosse in his county to execute a writ, he incurs 
considerable expense, yet there does not seem any means by 
which the sheriff can be remunerated for such expense ; on the 
other hand, the law has imposed the obligation upon every one 
to attend the sheriff when required, without prescribing any re- 
ward, therefore all sums paid by the sheriff to the posse are gra- 
tuitous on his part. 
Where. The authority of the sheriff is confined to the county whereof 

coiiniy. he is sheriff; if the sheriff therefore execute a writ out of his 

county, he is a trespasser : but on a writ of habeas corpus, the 
sheriff has power to carry a prisoner in his custody through other 
counties {x) ; and on fresh pursuit, the sheriff may, in another 
county, retake a person who has escaped from his custody (?/). 
Thus, if the sheriffs of London, on a writ directed to them, 
make an arrest in the county of Middlesex, or vice versd, the 
arrest is void («), and will be set aside on motion, or summons 
at chambers, provided it sufficiently appear on affidavit that the 
arrest took place in the wrong county, and that there is no dis- 
pute as to the boundaries (a). 
Places sui- The 2 Will. 4, c. 39, s. 20, after reciting that there are " cer- 

oXr county, tain districts and places parcel of some one county, but wholly 
situate within and surrounded by some other county,'' enacts, 
" that every such district and place shall and may, for the pur- 
pose of the service and execution of every writ and process, 
whether mesne or judicial, issued out of either of the said courts, 
be deemed and taken to be parts as well of the county within 
which such district or place is so situated as aforesaid as of the 
county whereof the same is parcel, and every such writ and pro- 
cess may be directed accordingly, and executed in either of such 
counties (&)." 

(u) Dalt.355; see also 1 Keb.99. Sel. 414. 

(t;) 8&9Will.3, c.27j 9 Geo 1, (a) Webber v. Manning, 1 Dowl. 

c. 21. 24; Lloyd v. Smith. 1 Dowl. 372; 

(:r) 2 Roll. Rep. 163; PIowd.37a. Storer v. Rayson, 4 D. & R. 739. 

(y) Dalt. 23. (b) See also 2 & 3 Vict. c. 82, and 

(s) Hammond v. Taylor, 3 Bar. & 7 & 8 Vict. c. 62. 
Aid. 408 ; see Chase v. Joyce, 4 M. & 



HOW SHERIFF MAY EXECUTE A WRIT. 75 

It is not lawful for the sheriff to make an arrest or execute a chap. v. 
writ in the queen's presence, or in a court of justice, whilst the 



justices are sitting, or in any of the royal palaces (c), or their Palaces. 
verge, unless by leave of the board of green cloth (d), or in the 
Tower (e). In such cases, however, the execution is not void, Tower, 
but only a contempt, and it will not be set aside on motion (/). 

If the sheriff enter a franchise, the owner of which has the Franchise. 
execution and return of writs, and execute a writ without a non 
omittas clause therein, the execution is good (^■), although the 
sheriff may be liable to an action at the suit of the owner of 
the franchise, for an infringement thereof (A). 

To execute a writ at the suit of the king, as an extent or the When the 

. . officer may 

like, the sheriff may (after signifying the cause of his commg enter houses 
and demanding admission) (i) break open the outer door of a open doors, 
house wherein the defendant or his goods may be {j ) ; so in exe- 
cuting a capias utlagatum, the sheriff may break open the outer 
door of a house {k). The sheriff or his officer may also break 
open an outer door in executing a writ of seisin or habere facias 
possessionem {I) ; but to execute any other writ or process in 
civil actions, whether on mesne process or in execution, the 
sheriff cannot break open the outer door of the defendant's 
dwelling-house (m), for it is said every man's house is his castle 
and fortress, as well for defence against injury and violence, as 
for his repose (n). A distinction has been supposed to exist in 
this respect between the outer door of the defendant's own house 
and that of a third person in which the defendant or his goods 
are concealed. The words of Lord Coke, from which that doc- 
trine has been drawn, are as follows (o) : " It was resolved, that 

(c) Winter D. Miles, 10 East, 578 ; (j) Semayne's case, 5 Rep. 92; 
1 Camp. 475; Gilb. C. P. 27 ; Bell S.C. Cro.Eliz.908; 4Leon.4; Fitz. 
y. Jacobs, 1 Moo. & P. 309 ; 4 Bing. Trespass, 232; Bro. Trespass, 248; 
523. S.C. Burdeltv. Abbolt, 14 East, 157; La- 

(d) Rex V. Stobbs, 3 T. R. 735; nock v. Brown, 2 Barn. & Aid. 592. 
see Winter v. Miles, 1 Camp. 475 ; {k) 2 Hale's P. C.202 ; Semayne's 
10 East, 578, S. C. case, 5 Rep. 92 ; Rex v. Bird, 2 Show. 

(e) See Batsoa v. M'Clean, 2 Chit. 87. 

Rep. 51 ; Bell v. Jacobs, 1 Moo. & (l) Semayne's case, 5 Rep. 92, 1st 

P. 309. Resolution. 

(/> Sparks v. Spinks, 7 Taunt. (m) Semayne's case, 5 Rep. 90; 

311. S.C. Cro. Eliz. 908; 4 Leon. 4; 

(&) PiggoU V. Wilkes, 3 B. & Aid. Cooke's case, Cro. Car. 537; S.C. 

502 ; Sparks v. Spinks, 7 Taunt. 311. Sir W, Jones, 429 ; Foster v. Hill, 1 

(h) Sec Carrett v. Smallpage, 9 Bulslr. 146. 

East, 330. (") /(/. ibid. 

(j) Launock v. Brown, 2 Barn. & (o) See 5 Rep. 93, 5(/i Resolution; 

Aid. 592. Foster, 309. 



76 EXECUTION AND RETURN OF WRITS. 



SECT. II. 



cHAH. V. the house of any one is not a castle or privilege but for himself, 
and shall not extend to protect any person who flies to his 
house, or the goods of any other, wliich are brought and con- 
veyed into his house, to prevent a lawful execution, and to es- 
cape the ordinai-y process of the law, for the privilege of his 
house extends only to him and his family, and to his own proper 
goods, or to those which are lawfully and without fraud and covin 
there." This has been construed to mean that the outer door of 
the house of a stranger, in which a defendant or his goods are, 
may be broken open to execute a writ: but it seems evident 
that Lord Coke only means to refer to cases of fraudulent con- 
cealment of goods, or the retaking a prisoner who has escaped, 
on fresh pursuit, or on an escape-warrant (p) ; in which latter 
case of retaking a prisoner who has escaped, on fresh pursuit, 
any outer door may, after request, be broken open, just as in the 
case of the crown (q). It is laid down as the result of the cases, 
in a very able work (r), that, although the sheriff may (after 
request made) justify breaking open the outer door of a third 
person's house, in order to execute process of the law upon the 
defendant or his property removed thither in order to avoid an 
execution, still he does so at his peril, for if it turn out that the 
defendant was not in the house or had no property there, he is a 
trespasser (s). It has also been considered that the sheriff cannot, 
even though he may have grounds for suspicion, justify entering 
the dwelling-house of a third person, although he breaks no 
door, unless it prove in the event that the defendant or his 
goods were actually therein (/). The author above referred to 
however goes on to say (?«), that circumstances may exist under 
which the sherifl' would be justified in entering the house of a 
stranger on suspicion, even though the defendant were not actu- 

(p) Per Best, C. J., in Rex v. ton, 3 B, & R. 229, explained in 

Conolly, Hertford Spring Assizes, Hutchinson v. Birch, 4 Taunt. 627 ; 

1824; see also Hutchinson v. Birch, Com. Dig. Execution, C 5; see White 

4 Taunt. 619 ; Johnson v. Leigh, 6 v. Wiltshire, Palm. 52; 2 Rol. Rep. 

Taunt. 248 ; Cooke v. Birt, 5 Taunt. 138 ; Biscop v. White, Cro. Eliz. 759 ; 

765. judgment in Cooke v. Birt, 5 Taunt. 

(q) R.D. Gansel, Lofft, 380; see 769; Moiiishi;. Murrey, 13M.&W. 

Genner v. Sparkes, 1 Salk. 79 ; 6 Mod. 52. 

173; Whilet'. Wiltshire, 2 Rol. Rep. (t) Cooke v. Birt, 5 Taunt. 765, 

138; Lloyd v. Sandilands, 8 Taunt. per Gibbs, C. J. and Dallas, J.; 

280. Johnson v. Leigh, 6 Taunt. 248, per 

(r) John William Smith's Leading Gibbs, C. J. ; Morrish v. Murrey, 13 

Cases, 44, n. M. & W. 52. 

(s) Johnson v. Leigh, 1 Marsh. (u) John William Smith's Leading 

565; 6 Taunt. 248; Ratcliffe f. Bur- Cases, 45. 



HOW SHERIFF MAY EXECUTE A WRIT. 77 



ally there. And he instances the case of the defendant being chap. v. 
on a visit with a third person, where the house of the third per- ^^^ '^' "' 
son would be pro tempore the defendant's dwelling-house (x), so 
that the outer door could not be broken open even after demand 
and refusal ; and also the case where fraud is used to inveigle 
the sheriff into a belief that the defendant is in the house. The 
right of the sheriff to enter the defendant's own house does not 
depend upon the contingency of the defendant being there, for 
that is the most natural place for the defendant or his goods to 
be. And on the same principle, where there is a judgment 
against an administratrix de bonis testatoris, and she marries, the 
sheriff may enter her husband's house to search for the goods 
of the testator (?/)• 

If the officer gain admittance at the outer door of a house, he 
may break open the inner doors or chests to do execution (s), 
even without first demanding that such doors should be 
opened (a). And in like manner, the sheriff may break open 
the door of a barn detached from a dwelling-house and not 
within the same curtilage, to do execution, although the door 
may be locked (b). Also, if, after a peaceable entrance at the 
outer door of a house, the sheriff or officer be locked in, he may 
justify breaking open the outer door to get out, and the court 
would probably grant an attachment against the defendant (c). 
And it is said that goods may be taken through a window, if 
open(rf). If the sheriff break open an outer door when he is 
not justified in so doing, this, it is said, does not vitiate the 
execution, but merely renders the sheriff liable to an action of 
trespass (e). In practice, however, the courts will discharge a 
defendant out of custody when so arrested, or order goods so 
seized to be restored. 

The sheriff is, in general, bound to set about executing all At what time 
writs delivered to him within a reasonable time after he receives ,na/and 
them for execution, and if he omit doing so, and any damage \^^l Ihrwrit. 



(x) See Shears v. Brooks, 2 H. Bl. (/)) Penton v. Browne, 1 Sid. 186; 

129. S. C. 1 Keb. 698; Bac. Ab. tit. 

(v) Cooke V. 15irt, 5 Taunt. 771. Sheriff, (N. 3). 

(z) Sir Thomas Kemp and Wind- (c) White v. Wiltshire, Cro. Jac. 

sor's case; Lee v. Gansel, Cowp. 1 ; 555; S. C. 2 Rol. Rep. 137; Palm. 

Lloyd V. Sandilands. 8 Taunt. 250 ; 52 : Pugh v. Griffith, 7 Ad. & El. 

S. C. 2 J. B. Moore, 207 ; see also 5 827 ; 3 N. & P. 189, S. C. 
Rep. 92. ((/) 1 Rol. Abr. 671, pi. 7; see 

(o) Hutchinson v. Birch, 4 Taunt. Doe v. Trye, 5 Bing. N. C. 573. 
619 ; Ratcliffe v. Burton, 3 Bos. & (e) Semayne's case, 5 Rep. 93 a. 

Pul. 223. But see Bac. Abr. Eiecutiou, (N.) 



78 EXECUTION AND RETURN OF WRITS. 

CHAP. V. arise froiTi such omission, he is answerable for it(/). His 
^^^'^- "• power to execute the writ continues from the time it is delivered 
to him until the expiration of the return day of the writ, if re- 
turnable on a particular day(g-). The sheriff could not execute 
process between the return day and the quarto diejwst^h), and 
for so doing he would be a trespasser, as the four days between 
the return day and the quarto die jwst were merely ex gratid {i). 
But where the sheriff held an inquest on the return day of the 
writ, but the jury did not give their verdict for two or three 
days afterwards, the writ was held to be well executed (A;). 
So, where a writ of trial under 3 & 4 Will. 4, c. 42, was return- 
able on the 27th July, and the trial commenced on that day, but 
the verdict was not delivered till the 28th, an objection by the 
unsuccessful party, on motion for a new trial, that the sheriff had 
no power to receive and enter the verdict, was not entertained (Z). 
If the trial have not commenced before the writ is returnable, the 
proper course would seem to be to apply to a judge to have the 
time extended (w) ; although it has been said that even in such 
case the court would amend the record on motion (n). Where 
no particular return day is mentioned, but the writ is returnable 
" immediately after execution," the power of the sheriff (while 
in office) to execute the writ continues until the writ is actually 
executed or returned, even though it be a writ of execution, and 
more than a year has elapsed from the time of the judgment (o). 
If, however, the execution of it be in the mean time counter- 
manded by the execution creditor, the sheriff is a trespasser if 
he proceed to execute it notwithstanding (;)). In the case of 

(/) Brown v. Jarvis, 1 M. & W. (h) 2 Roll, Abr. 278, pi. 10, cit. 

704; 5Dowl. 285, S.C. ; see Jacobs 33 Hen. 6, 45, 46; Ellis v. Jack- 

V. Humphries, 2 C. & M. 13; Bates son, 1 Lev. 143; S. C. 1 Sid. 229; 

V. Wingfield, 2 N. & M. 831'; Aire- 1 Keb, 718, 805; see Loveridge v. 

ton V. Davis, 9 Bing. 740; 3 M. & Plaistow, 2 H. Bl. 29. 

Scott, 138, S. C. ; Doker v. Hasler, (i) See Coulson v. Haramon,2 Bar. 

2 Bing. 479 ; 10 Moore, 210, S. C. ; & Cres. 626 ; S. C. 4 D. & R. 160. 

Randell v. Wheble, 10 Ad. & El. (k) 2 Rol. Abr. 278. pi. 5, Dj^ke 

719 ; Mason v. Paynter, 1 Gale & D. v. Blakslon, 2 Lord Raym. 1449. 

386; Clifton w. Hooper, 6 Q. B. 468. (/) Pinkney i;. Booth, 1 Dowl. 

(g) Bugberd's case, Cro. Eliz. 180 ; N. S. 421. 

Gaven v. Ludlow, ib. 468; WoUey (m) Mortimer v. Preedy, 3 M. & 

t; Moseley,i6.761 ; S. C. Moor,71 1 ; W. 602. 

Anon. 3 Salk. 51 ; 2 Roll. Abr. 278; (n) Slierraanw.Tinsley,4Scott,286. 

Parlims v. Wollaston, 6 Mod. 130. (o) Simpson v. Heath, 5 M. & W. 

Even after the rising of the court on 631 ; Greenshields y. Harris, 9 M. & 

that day, Maud v. Barnard, 2 Burr. W. 774; Thomas i'. Harris, 1 Dowl. 

812; Dyke v. Blakston, 2 Lord N. S. 793. 

Raym. 1449; Towne v. Crowder, 2 (p) Hunt v. Hooper, 12 M. & W. 

C. & P. 355. 664. 



WHEN SHERIFF JIAY EXECUTE A WRIT. 79 

some writs a certain time is prescribed by statute within which cuap. v. 
the writ is to be executed ; e. g. the capias under 1 & 2 Vict. ^'^"' "' 
c. 110, s. 3, must be executed within a month. 

Before the 3 & 4 Will, 4, c. 99, if the sheriff levied goods on After yeai of 
a^. fa. and went out of office, he might still have proceeded to 
sell the goods, even without a venditioni exponas, for the same 
sheriff that began must have finished the execution (q). Whether 
the 7th section of that statute makes any difference in this re- 
spect has been already considered (r). 

By the statute 29 Car. 2, c. 7, s. 6, it is enacted, " That no The sheriff 

■^ cannot exe- 

person upon the Lord s day shall serve or execute, or cause to cute a writ 

, \ ,. -.-on a Sunday. 

be served or executed, any writ, process, warrant, order, judg- 
ment, or decree (except in cases of treason, felony, or breach of 
the peace), but that the service of every such writ, process, 
warrant, order, judgment or decree shall be void to all intents 
and purposes whatsoever, and the person or persons so serving 
or executing the same shall be liable to the suit of the party 
grieved, and to answer damages to him for doing thereof, as if 
he or they had done the same without any writ, process, warrant, 
order, judgment, or decree at all." It has been holden that, 
under the provisions of this statute, the execution of a writ of 
inquiry on a Sunday is bad (s) ; and that the statute extends to 
render void the mere service of process on a Sunday. Thus, 
the service on a Sunday of a Master's order {t), or of an award (m) 
to ground an attachment, has been held void ; for neither of these 
is in the nature of a criminal proceeding, but of a civil execution. 
So on this statute it has been held, that an arrest on Sunday 
upon a capias utlagatum(x), or for non-payment of a penalty 
upon conviction (y), is void ; but after a negligent escape the 
defendant may be retaken on Sunday, either upon fresh pursuit 
or upon an escape warrant, for this is not an original taking (2). 
And it would seem that bail may take their principal on Sunday, 
in order to surrender him, for he is considered to be always in 

(q) Ayre v. Aden, do. Jac. 73; 1 plea served on a Sunday is void by 

Salk. 323; 1 Ves. 196. this statule, Roberts v. Monkhouse, 

(r) Ante, pp. 24, 25. 8 East, 547. 

(s) Hoyle v. Lord Cornwaliis, 1 (x) Barnes, 319. 

Stra. 387. (ly) Kex v. Myers, 1 T. R. 265. 

(0 M'lleham v. Smith, 8 T. R. 86. (2) Parker v. Sir W.Moore, 6 Mod. 

(«) Rex V. Myers, 1 T. R. 266; 95; S. C. 2 Lord Raym. 1028; 2 

and it has been holden that notice of Salk. 626. 



80 EXECUTION AND RETURN OF WRITS. 

CHAP. V. their custody ; and this case does not fall within the statute, 
^^'^^' "• inasmuch as this is not by virtue of any process at all (rt). But 
the sheriff cannot retake a party on Sunday after a voluntary 
escape (/>). It would appear that a citation out of the spiritual 
court might be served on a Sunday (c) ; or an attachment for a 
rescue (c?); or a person may be arrested on a Sunday on the 
Lord Chancellor's warrant, on an order of commitment for con- 
tempt (e). And a person may voluntarily surrender himself to 
prison on a Sunday if he will {/ ). As, after a voluntary escape, 
a party cannot be retaken on a Sunday, so where A. was arrested 
at the suit of B., and discharged, the sheriff not knowing that 
there also was a detainer in his office at the suit of C, and on 
the Sunday following he was arrested at C.'s suit, the court held 
this arrest void (g). But where a defendant, in custody in the 
county gaol on a ca. sa., received on a Saturday an order from 
the creditor for his discharge, which was on the same day for- 
warded by the gaoler to the under-sheriff, who lived at another 
town in the county, and on the Sunday a warrant of detainer on 
another ca, sa., which had been received by the sheriff on the 
Saturday, was forwarded to the gaoler, who thereupon detained 
the defendant, it was held that he had no right to his discharge ; 
for the sheriff was entitled to a reasonable time to search his 
office for other writs against the defendant, which time would 
not elapse till the Monday (h). 

Where a person has been arrested, or served with a process 
on a Sunday, the arrest or service is wholly void, so much so, 
that no waiver by the party can cure the irregularity (i). And 
if the defendant or his goods be in the custody of the sheriff, 
the court will set the execution aside, or discharge the defendant 
out of custody, on motion (j ). And it seems quite clear, from 
the words of the statute, that an action of trespass would lie 
against the sheriff, if he took either the defendant or his goods 

(a) Anon. 6 Mod. 231; 1 Atk. (d) Anon. Willes, 459. 

239. Sed vide Brookes v. Warren, 2 (e) Semb. 1 Atk. 55. 

Blac. Rep. 1273, contra. (/) Ibid. 

(6) Featherslonhaugh v. Atkinson, (g) Atkinson v. Jameson, 5 T. R. 

Barnes, 273; Atkinson v. Jameson, 25. 

5 T. R. 25. He cannot retake him (h) Samuel v. Buller, 1 Exch. R. 

on any day. 439. 

(c) Alanson v. Brookbank, 5 Mod. (i) Taylor v. Phillips, 3 East, 155. 

449; Carth. 504 ; Walgrave »>. Tay- {j) 5 T. R. 25 ; see also 6 Mod. 95. 
lor, 1 Lord Raym. 706; 12 Mod. 606. 



OF THE RULE OR ORDER TO RETURN THE WRIT, 81 



SECT- II. 



by virtue of any civil process on Sunday (A;). And as all arrests chap. v. 
are unlawful which are made on a Sunday, it would appear to 
be the better opinion, that if a sheriff's bailiff attempt to arrest 
a person on a Sunday, and that person resists and slays the 
bailiff, this is not murder {I). 



Section III. 
Of the Rule or Order to return the Writ. 

Regularly, the sheriff should make his return to every writ(?»): whm ii ii 
but it is not usual for sheriffs to do so, unless ruled for that "txarTl^e ** 
purpose. The writ of elegit, however, is an exception to this ; "" ' 
for if lands be extended on it, it is absolutely essential that it 
should be returned (?i). And it has been doubted whether the 
sheriff ought not to return writs returnable immediatley after 
execution, without waiting for a rule(o). The writ is no justi- 
fication to the sheriff for arresting a person upon mesne process, 
unless it be shown that it is returned (^j) ; otherwise of writs of 
execution (y). 

The party whose writ it is may rule the sheriff to return it at who may 
any time. The party against whom it issued may rule the sheriff to rein'm, 
to return it after the object of the writ has been effected (r). "" " *"* 
But it seems that this could not be done by such party before 
that time, except on special grounds (*). And a side -bar rule 
obtained for such a purpose was discharged by the Court of 
C. P. (t). If it could be done before, it would be in the power 
of any person against whom a writ returnable " immediately 
after execution" issues, to defeat the writ, by ruling the sheriff 
to return it as soon as he knows of its existence, and before it is 
executed (m). It may sometimes be advisable for the person 

(fc) Wilson V. Guttery, 5 Mod. 95 ; S. C, Salk. 410; Lord Raym. 632. 

S. C. Salk. 78, nomine Wilson v. (g) Cheasley v. Barnes, 10 East, 

Tucker ; and see 6 l\Jod. 95. 73 ; Rowland >;, Veale, Cowp. 18. 

(/) Hawk. P. C. c. 32, s. 58. (r) See Edmunds v. Watson, 7 

(m) See Woodman v. Gist, 8 C. Taunt. 5; 2 Marsh. 333, S.C.; France 

& P. 213. V. Clarkson, 2 Dowl, 532. 

(n) Hoe's case, 5 Rep. 90; Gar- (s) Daniels v. Gompertz, 2 Gale & 

raway d. Harrington, Cro. Jac. 569. D. 751. 

(o) Woodman v. Gist, 8 C. & P. (t) Williams v. Webb, 2 Dowl. 

213. It is not easy to see the distinc- N. S. 904. 

tion. (w) See Daniels v.Goropertx, 2 Gale 

(p) Britton v. Cole, Salk. 409; & D. 751. 
Freeman r. BleweU, 12 Mod. 394 ; 



82 



EXECUTION AND RETURN OF WRITS. 



CHAP. V. 
SECT. III. 



May be 
rilled ID 
term or va- 
cation. 



When the 
old sheritf 
may be 
ruled to re- 
torn. 



against whom the writ issues to rule the sheriff to return it, in 
order to prevent improper conduct in the officer. The court 
will not however, at the instance of the party against whom a 
writ of ^. fa. issued, order the sheriff to make a specific return 
of the goods sold and their proceeds, on the ground that the 
officer has wasted the property seized (a;). 

By the common law, the rule could only have been obtained 
in term time. But by 2 Will. 4, c. 39, s. 15, " It shall be lawful 
in term time for the court out of which any writ issues hy 
authority of this act, or any writ of capias ad satisfaciendum, 
fieri facias, [including the ancillary process of venditioni ex- 
ponas (?/)], or elegit, shall have issued, to make rules, and also 
for any judge of either of the said courts, in vacation, to make 
orders for the return of any such writ, and every such order 
shall be of the same force and effect as a rule of court made 
for the like purpose ; provided always, that no attachment shall 
issue for disobedience thereof until the same shall have been 
made a rule of court (s)." 

If the sheriff execute a writ, and go out of office, as in strict- 
ness he ought to have returned the writ before he was out of 
office, he is still liable to be ruled to return the writ, and to an 
attachment for not returning it, for the contempt was actually 
committed whilst he was a servant of the court (a). It is, how- 
ever, enacted by the statute 20 Geo. 2, c. 37, " That no sheriff 
shall be liable to be called upon to make a return of any writ or 
process, unless he be required so to do within six months after 
the expiration of his said office." The word required, means 
ruled to return ; therefore the sheriff is not liable to an attach- 
ment for not returning a writ if not ruled, although requested so 
to do, within that time (6). The months mentioned in this 
statute have been construed to mean lunar months (c). And 
according to R. v. Adderley (c?), the day on which he goes out 
of office is to be reckoned in the six months, but it may be 
doubted how far that case is consistent with more modern 
decisions (e). It is reported to have been decided in one case 



(i) Wlllett V. Sparrow, 2 Marsh. 
293 ; 6 Taunt. 576, S. C. 

(y) Hughes v. Rees, 4 M. & W. 
468; 7Dowl.56,S.C.; Reg.i;. Berles, 
6 Dowl. P. C. 97. 

(2) See post, 85. 

(a) Rex D. Addeiley, Doug. 464; 
and see Rex v. Sheriff of Middlesex, 



4 East 604 

(h) Rexi;.Jones,2T.Rl.; Doug. 
463, n.; see Garth t>. Hopkins, 3 
Dowl. 711. 

(c) Rex V. Adderley, Doug. 463. 

Id) Doug. 463. 

(e) See Webb v. Fairmaner, 3 M. 
& W. 473, where the cases are col- 



OF THE RULE OR ORDER TO RETURN THE WRIT. 83 



CHAP. V. 
SECT. III. 



that a sheriff, under special circumstances, might be compelled 
to return a writ, though he had been more than three years out 
of office (/). But the statute 20 Geo. 2, c. S7, was not adverted 
to. The subject of the transfer of unexecuted writs to the in- 
coming sheriff has been already discussed {g). 

If the plaintiff has taken an assignment of the bail bond, he <?»«" "•'"^ 

, J . , , . , . , . 'the sheriff 

has determmed his election, and is not at liberty afterwards to cannot be 

^ ^ 1 • rr- ^ • r- rultil to re- 

rule the sheriff to return the writ of capias (Ji). If however the turn the wrii. 
bond be void, as being executed after the return of the writ, or 
the like, the sheriff may be ruled to return the writ, notwith- 
standing an assignment of the bail bond (i). 

It has been holden that the sheriff cannot be ruled by the 
plaintiff to return the writ, where it has been executed by a 
special bailiff, appointed by the plaintiff or his agent {k). But 
it seems that if in such a case it becomes essential, with a view 
to further proceedings, that a return should be made, e. g. where 
after a.Ji.fa., under which an unproductive seizure has been 
made, the plaintiff wishes to issue a ca, sa., the plaintiff, after 
informing the sheriff of the purpose for which the return is 
desired and offering an indemnity, may, in case of refusal, rule 
him to return the writ (/). Where the plaintiff takes from 
the defendant a cognovit, conditioned to pay the debt and costs 
by instalments (m), or where the parties, either with or without 
their attorney's consent, compromise, so that the sheriff cannot 
complete the execution, and the return would be useless (n), 
or there is any collusion between the officer and the plaintiff or 
his attorney (o), or the plaintiff (or his assignees, if he has be- 
come bankrupt or insolvent) has made an arrangement with the 

lected. Rex v. Adderley may perhaps appointed. 

be supported on the ground there sug- (/) Harding v. Holder, 3 Scott. 

gesled by Parke, B. N. R. 293; 2 Man. & Gr. 914j 9 

(/) Wilton V. Chambers, 3 Dowl. Dowl. 659, S. C. 

338. (m) Rex v. Sheriff of Surrey, 1 

(g) Ante, J). 2^,25. Taunt. 159; Farmer v. Thorley, 4 

(h) Elherick f. Cowper, 1 Salk. 99; Bar. & Aid. 91 ; and see Rex v. The 

Lord Brooke i;. Stone, I Wiis. 223. late Sheriff of Middlesex, 2 Bing. 

(0 Id. ibid. 366. 

(fc) Hamilton v. Dalziel, 2 Blac. (n) Alchin d. Wells, 5 T. R. 470; 

Rep. 952; DeMoranda «. Dunkin,4 Hodges v. Jordan, 5 Dowl. 6; see 

T. R. 119. See also Porter v. Viner, Edmunds v. Watson, 2 Marsh. 333; 

1 Chit. Rep. 613, n. ; Palister v. 7 Taunt. 5, S. C; Balsonu. Meggatt, 

Palister, i6. 614, n. See fully ante, 4 Dowl. 558. 

p. 40, 41, as to the liability of the (o) Rustonu. Hatfield, 3 B. & Aid. 

sheriff where a special bailiff has been 204 ; 1 Chit. R. 613, S. C. 

G 2 



84 



EXECUTION AND RETURN OF WRITS. 



CHAP. V. 
SECT. III. 



The rule 
order. 



sherifFas to the disposal of the goods (p), or the defendant against 
whom a ca. sa. issues has become an insolvent or a bankrupt, 
and the plaintiff has accepted the office of assignee (5), or indeed 
in any case where the party seeking to compel a return has by 
his conduct placed the sheriff in any difficulty as to the return (r), 
the sheriff cannot be ruled to return the writ ; and if a rule be 
obtained, the court on motion will discharge it (s). The new 
sheriff cannot be compelled to return writs not regularly trans- 
ferred to him by the old sheriff (i). 
Noeitoppei. No estoppel as to the validity of a writ is created by ruling 
the sheriff to return it, and the filing that return of record («). 

We have seen that the proceeding to compel a return is in term 
time by rule, and in vacation by a judge's order. The rule is a 
side-bar rule, and may be obtained, like other side-bar rules, 
at the master's office on any day of the term, even the last (m). 
The order may be obtained in vacation at judge's chambers as a 
matter of course, without any affidavit {x). 

It is directed in ordinary cases to the sheriff or '^ late sheriff," 
who should be so designated in rules addressed to him {y). 

Where the writ is issued to a county palatine, the rule should 
not be made on the chancellor, but on the sheriffof the county (2). 
So where the writ is executed within a liberty by the bailiff, he 
may be ruled to return the writ either in the first instance, or 
after the sheriff has returned viandavi ballivo. In either court 
the rule or order expires in four days after service in London 
and Middlesex, and eight days after service in any other county 
or city (a), 

Formerly, in every county except London and Middlesex, the 
rule must have been served on the sheriff or under-sheriff (6), 



To whom rti 
reded. 



Service of. 



(p) Gilbert v. Whalley, 2 C. M. & 
R. 722. 

(5) Hepworth v. Sanderson, 8 Bing. 
19. 

(r) See Hook v. Weatherby, 4 
Wowl. 171. 

(s) See De Moranda v. Dunkin, 4 
T, R. 1 19 ; Hamilton v. Dalziel, 2 B. 
& C. 952; 1 Chit. Rep. 614, n. ; 
Hodges V. Jordan, 5 Dowl. 6. 

(t) Thomas v. Newman, 2 Dowl. 
N.S. 33. 

(v) Jones V. Williams, 8 M. & W. 
349; 9Dowl. 302, S. C. 

(i») R.H.2 Will. 4, r. 96. 



(x) Reg. Gen. H. T. 1 Vict. 
iy) See R. v. Sheriffof Cornwall, 
7 Dowl. 600. 

(z) Chitty's Arch. 7th ed. 550. 

(a) Reg. Gen. M. T. 7 W. 4. 
This rule no doubt includes orders, 
though it specifies only rules. See 
Chitty's Archbold, 7th ed. 550. 

(b) Rex V. Coles, Doug. 420. 
Where the under-sheriff shut himself 
up to avoid the service of the rule to 
return the writ, the court directed that 
leaving a copy at his house should be 
good service; Richardson v. Baily, 
Barnes, 35. 



OF THE RULE OR ORDER TO RETURN THE WRIT. 85 

now, by the effect of 3 & 4 Will. 4, c, 42, s. 20, service on the ch^p. v. 
sheriff's deputy in town will suffice. ^^^^' "'' 

A copy of the rule (with the name of the officer by whom the 
defendant was arrested indorsed on it) must be served personally 
on the under-sheriff or deputy (c), and the original rule shown 
at the same time(c?). At the time of serving the rule, the party 
making the service should make a memorandum of the person 
on whom he served it, that it may be inserted in the affidavit. 

If the rule expire in term time, the sheriff should return the At what tinM! 
writ on or before the day on which the rule expires, otherwise the mdeV'shnnid 
plaintiff may move for an attachment on the day following (e) ; ^^,h"ami**'* 
or if the rule expire on the last day of term, the plaintiff may ?or''ne"iect' or 
move for an attachment at the rising of the court on that day, if '^^'''y* 
the writ be not then returned (/). If the rule be obtained in 
term, and expires in vacation, then by Reg. Gen. H. T. 2 Will. 4, 
rule 11, " the sheriff' shall file the writ at the expiration of the 
rule, or as soon after as the office shall be open." And by r. 12, 
" the officer with whom it is filed shall indorse the day and hour 
when it was filed." And by R.T. 7 Will. 4, Q. B., assimilating 
the practice of the three courts, it was ordered that sheriffs may 
file their returns to writs in vacation, and searches may be made 
in vacation for writs and returns filed, without payment of the 
extra fee hitherto charged. If he fail to return the writ in 
vacation, on the expiration of the rule, an attachment may be 
obtained on the first day of the next term (g). 

In case of orders made in vacation, pursuant to 2 Will. 4, c. 39, 
s. 15, it is provided by Reg. Gen. M. 3 Will, 4, r. 13, " that in 
case a judge shall have made an order in vacation for the return 
of any writ issued by authority of the said act, or any writ of 
en. sa,,fi. fa. (including venditioni exponas (^h)), or elegit, on any 
day in the vacation, and such order shall have been didy served, 
but obedience shall not have been paid thereto, and the same shall 
have been made a rule of court in the term then next following, 

<c) Barnes, 30, 35 ; 3 & 4 Will. 4, (j^) Rex i-. Sheriff of Middlesex, I 

c. 42, S.20. Marsh. 270; S. C. 5 Taunt. 647; 

(d) Barnard i;. Berger, 1 N.R. 121 ; Smith i>. Blylh, 9 Price, 255. 

Rex I'. Smithies. 3 T. U. 351. (h) Hughes v. Rees, 4 M. & W. 

(e) R. M. 30 (ieo. 3, 4 J'. R. 496. 648 ; 7 Dowl. 56 ; Reg. i . Berles, 6 
{/) Rex I'. Sheriff of Surrey, II Dowl. 97. 

Ea.sl, 591. 



S6 



EXECUTION AND RETURN OF WRITS. 



CHAP. V. 
SFCT. III. 



Motion for 
attachment. 

Affiiiavit 
necessary to 
ground au 
attacbinent. 



Setting aside 
attacbment 
on terms. 



it shall not be necessary to serve such rule of court or to make 
any fresh demand of performance thereon, but an attachment 
shall issue forthwith for disobedience of such order, whether the 
thing required by such order shall or shall not have been done 
in the meantime." This rule, be it observed, is strictly confined 
to the cases mentioned in it, namely, orders made and returnable 
in vacation. It does not apply to rules of court (i), nor to orders, 
unless they expire in vacation, and therefore, except in the case 
of an order expiring in vacation, an attachment will not be 
allowed to stand, if a return be made before the rule for an 
attachment has been obtained (/c). But if the sheriff return the 
writ after the rule for an attachment is obtained, though before 
it is actually served^ yet the contempt is not thereby purged (/). 
It is no waiver of an attachment for not returning a writ oifi.fa. 
to direct the sheriff, after the order to return has expired, to 
proceed with the execution {m). 

Where the sheriff, on being ruled to return a writ, gave notice 
to the plaintiff that the writ was lost, and that the defendant was 
in custody on other process, the court set aside an attachment 
obtained against the sheriff for not returning the writ, as irre- 
gular under those circumstances (n). 

The rule for an attachment, which is absolute in the first 
instance (o), is moved for upon an affidavit, stating a personal 
service of a copy of the rule, and that the original rule was at 
the same time shown to the person served (p). 

The attachment against a sheriff is directed to the coroner, or 
if he be interested, then to elisors in the first instance {q). 

When an attachment has been irregularly obtained, it will of 
course be set aside. And even where the attachment is regular, 
yet where the omission or delay of the sheriff has caused no loss 
to the party who ruled him, the attachment will be set aside on 



(t) As to rules or orders for relum- 
ing a bailable writ of capias, which 
expire in vacation, and to which cejii 
cnrpus is returned, see Reg. Gen. H. 
3 Will. 4, post, chap. 6. 

(k) Williamson v. Harrison, 9 M. 
& W. 225 ; 1 Dowl. N. S. 664, S. C. 

(/) See Rex tJ.Sheriflr of Surrey, 11 
East, 591. 

(m) Howittt;. Rickaby, 9 M. & W. 
.52; 1 Dowl. N. S. 389, S. C. 



(«) Rex II. Sheriff of Kent, 1 
Marsh. 289. Gibbs, C. J., said, that 
the plaintiff might have proceeded as 
if the sheriff had returned cepi corpus, 
and had actually brought in the body." 

(o) 2Chitty's Archb. 1263. 

(p) Barnard v. Berger, 1 N. R. 121 ; 
Rex I'. Smithies, 3 T. R. 351. 

(7) Reg. I'. Sheriff of Glamorgan- 
shire, 1 Dowl, N. S. 308. 



RETURNS IN GENERAL. ^^ 

payment of costs only (r). And the sheriff will not be compelled chap. v. 
to make good moi 
sion or delay (*). 



to make good more than the loss actually occasioned by his omis 



Section IV. 
Returns in general {t). 

Returns are nothing else but the sheriffs' answers, touching The reium. 
that which they are commanded to do by the king's writ, and 
are but to ascertain the court of the truth of the matter ; and 
yet this is one of the most difficult things belonging to the office : 
for, as Dalton says (m), if he be not circumspect in making his 
returns, " he shall not only endanger himself to be amerced, or 
sued for the same ; but also he shall indamage the parties, and 
may hazard the cause or suit itself; for you shall find that judg- 
ments have been often stayed for faults apparent in the sheriff's 
return, yea, and that judgments have been often reversed by 
writs of error for this cause." 

The return is made by the under-sheriff in the name of the By whom 
high sheriff, as the high sheriff is the person to make the return. 
But if a writ be directed to the sheriff to be executed, and after- 
wards a new sheriff is elected, the successor (if the writ be trans- 
ferred to him) ought to return the writ with the old sheriff's return 
thereon, and that he received the writ as above indorsed from his 
predecessor (x). Now it is the practice for the late sheriff to 
make his return (y). If the sheriff die during his year of office, 
the under-sheriff, before the appointment of a new sheriff, should 
make the return in the name of the deceased sheriff (z). Where 
the sheriff has sent his mandate to the bailiff of a liberty to exe- 
cute a writ, it is, strictly speaking, the duty of the bailiff to make 
his return to the sheriff, who returns mandavi hallivo, with the 
bailiff's return ; but it is now usual to rule the bailiff himself 

(r) R. V. Sheriff of Essex, 8 Dovvl. (t) The returns to particular writs 

5; Dorrien D. Sheridan, 6 Bing.N.C. will be discussed in the chapters re- 

150 ; 8 Scott, 363, S. C. Jating to such writs respectively. 

(s) Reg. V. SheriflF of Herts, Dod (u) P. 182. 

D.Coleman, 9Dowl.916; see R. v. (a) 2 Roll. Abr.4.57 ; 1 Bulst.70; 

Sheriff of Kent, Potter v. Simpson, 2 Gibbons d. Roberts, 1 Salk. 266; R. 

M. & \V. 316. As to enforcing the r. Sheriff of Middlesex, 4 East, 604. 

return of a fi.fa. out of the Couit (y) Per Lord Ellenborough, C. J., 

of Chancery, see Evans i', Davies, 7 4 East, 606. 

Beav. 81. (z) 3 Geo. 1, c. 15, s. 8. 



SECT. IV. 



EXECUTION AND RETURN OF WRITS. 

CHAP. V. after a return o^ tiullum dedit responsam, in which case the bailiff 
makes his return directly to the court (a). 

The sheriff of a county palatine, having execution of a writ 
out of one of the superior courts at Westminster, may either 
return the writ to the chancellor, to be returned by him to the 
superior court, or may at once return it to the superior court 
himself(/'). 

The forms of returns used at this day are the same as when 
Dalton wrote, excepting that now they are in English instead of 
in Latin. The return is made on the back (c) of the writ itself; 
and if long, a schedule is annexed to the writ, and referred to in 
an indorsement on the writ. Where the return is made on the 
back of the writ it may be in this form, viz. " By virtue of this 
writ, to me directed and delivered, I have \Jiere stale what has 
been done under the writ,'] as by the said writ I am directed and 
commanded ; A. B. esq., sheriff." The writ and return should 
be filed in the office of the court, before or on the day on which 
the rule or order to return the writ expires {d). And to ensure 
punctuality, it is ordered (e) that "the officer with whom it is 
filed shall indorse the day and hour when it was filed." For- 
merly, it was held that any formal defects, as the want of words 
of reference, vitiated a return, but the addition of modo et forma 
quod breve exigit et reqidrit, cured any defects in the formal parts 
of the return (/). Where the sheriff returned that he had 
taken the body of C. D., without saying the within-named, it was 
held that the return was bad, for C. D. might be a stranger {g) ; 
but such an objection would not avail at this day (Ji). When 
the return is long, as where the inquisition as taken by a jury is 
set out, as on a return to an elegit, or a writ of inquiry, the return 
is made in this form {i) : " The execution of this writ appears 
in a certain schedule hereto annexed; A. B. esq., sheriff:" and 

(a) Boothman v. Earl of Surrey, 2 13 ; Bro. Expos. 34 ; 1 Hen. 6, 6. 

T. R. 5; T. Uaym.193. See Jackson (g) Mro. Amendment, 6\; 12 Hen. 

D.Taylor, 5 Dowl. 140. 6, 19; 11 Hen. 7, 28. 

(6) R. V. Sheriff of Lancaster, 7 (/;) And see Fitz. Retorn, 2, 44; 

Dow). 765. Bro. lieUn-ne de Briefe, 28, 64 ; Com. 

(c) This is the universal practice; Dig. Pleader. 

but semble, a return on the face of the (i) It was determiner] that a return 

writ would be good ; Dalton, 189. was vicious Vv-here it was stated thai 

(rf) See an(e, p. 85. " the residue of this writ appears," &c. 

(e) Reg. Gen. H. 2 W. 4, r. 12. instead of the " residue of (he eiecu- 

(/) Filz. Retoni, 44; 2 Hen. 4, tw?i,"&c. Fhz Retorn,\4; 19Hen.6. 



RETURNS IN GENERAL. 



89 



a separate piece of parchment containing the inquisition is chap. v. 
annexed to the writ. By stat. 12 Edvv. 2, c. 5, it was pro- . ^^"' '^' 
vided, " That from thenceforth sheriffs and other baihffs that 
receive the king's writs returnable in his court shall put their 
names with the returns, so that the court may know of whom 
they took such return, if need be. And if any sheriff or other 
bailiff leave out his name in his return, he shall be grievously 
amerced to the king's use." The sheriff ought to put his christian 
name and surname to the return (A;) ; where there are two sheriffs, 
they both ought to put their names ; and a return in the name 
of one is not aided, for it is no return at all {I). It seems, how- 
eve, that a return is not bad for the sheriff's omitting his name, 
although he is liable to be amerced (m). Where a new sheriff 
makes a return to a writ which has been executed by his prede- 
cessor, the new sheriff returns the writ with his predecessor's 
return ; in which case the old sheriff's subscription of '* A. B. 
esq., late sheriff," is sufficient, for the statutes only require the 
name, and the words " late sheriff" are surplusage (n) ; but the 
new sheriff should return the writ as executed by his predecessor, 
and not as executed by himself (o). Formerly, the want of the 
sheriff's name to a venire facias was error, but this omission is 
cured by the statute of jeofails, 21 Jac. 1, c. 13, s, 2; 4 & 5 
Ann. c. 16, s. 1 ; and by IG & 17 Car. 2, s. 8, the want of the 
sheriff's name being returned on the original writ is cured. 

The return ought to be certain (p). But it seems that inas- The return 
much as it is only to ascertain the court of the truth of the |^"„" ^ '"' 
matter, it requireth not such precise certainty as is required in 
pleading (ry). It must be certain in time, place, and all other 
material circumstances (?•). Therefore, where the sheriff returns 
that the defendant had no goods, or that the defendant non est 
inventus prout ei constare poterit, the return is bad, for the sheriff 

(fc) Dive V. Maningham, Plowd. see 1 Bulstr. 73; 3 Bulstr. 78; Vin. 

63, a; Filz. Uetorn, 8; 8 Hen. 6, Abr. Rt^ocH, C; 1 Chii. Aich. 7thed. 

27 ; Carth. 56 ; and see Ingoldsby 413. 

V. Marlin, Strange, 316, where are- (n) Bethyll t;. Parry, Cro Car. 

turn in the name of George instead of 189, 570. 

Henry, Earl of Lichfield, was held (o) Rex v, Sheriflf of Middlesex, 4 

well enough. East, 604. 

(/) See U Rep. 4; Lamb «. Wise- (p) Ualt. 168. 

man, Hob. 70 ; 39 Hen. 6, 41. (o) Ihid. 

(m) Ualston i-. Thorp, Cro. Eliz. (r) Ihid. 
767 ; I Leon. 139, tamen qiiccre. And 



direct. 



90 EXECUTION AND RETURN OF WRITS. 

CHAP. V. should have said directly nidla bona or non est inventus (s). 

'^^"' ^^' Upon a habere facias seisinam, the sheriff returned that the party 
non 2>'>'0secutus est breve, this return is bad for uncertainty (f). 
In a replevin, if the sheriff return that he could not deliver the 
goods quia visum inde habere non jwtuil, it is bad, because he does 
not say that he came to the place (?<). So to a.Ji.fa., a return 
that the premises of the defendant are so barricadoed that the 
sheriff cannot ascertain whether there are goods on which a levy 
can be made or not, is bad, for he ought to give a direct answer 
either that there are no goods which can be levied upon, or that 
there are, and that he has levied {x). So a return that the she- 
riff has caused to be seized divers goods of A. B., the value 
whereof is to him unknown, which remain in his hands for want 
of buyers, is irregular ; some value must be stated (y). But a 
return stating, " I have caused to be made of the goods of A. B. 
&c., 22/. 2s., out of which I have paid 11/. 5s. for rent due for 
the premises wherein the said goods were taken," &c., was held 
sufficient, on the ground that it must be reasonably intended to 
refer to rent due to the landlord at the time of the seizure (s). 
An argumentative return subjects the sheriff to an attachment, 
unless the court give leave to amend (o). 
The return The retum must answer the whole writ up to the time of 

making the return ; therefore the return of a panel with nine or 
less names than twelve is void (6). So a return upon a grand 
cape, cefi manus, Sec, if it say nothing as to the summons of the 
tenant, it is void (c). Scire facias against the heir and terre- 
tenants, if the return say nothing as to the heir, it is void ((/). 
A sheriff's return upon an extendi facias, that he has delivered 
such land, without saying that there is no other land, is void (e). 
Upon a petit cape, where the count was for a house and stable, 
the return was cepi as to the house, but said nothing as to the 

(s) Bro. Retonte de Briefe, pi. 8 ; P. C. 8. 

Roll. Abr. Return (L), 1 ; 9 Hen. 6, (b) Roll. Abr. Return (M), 2 ; Bro. 

657. Relorne de Briefe, 47, 48. 

(t) Roll. Abr. Return (L), 2, 3, 4. (c) Roll. Abr. Return (M), 2. 

(m) Ibid. (L), 5. (d) Eyres v. Taunton, Cro. Car. 

(i) Munk V. Cass, 9 Dowl. 332. 295; but this was held to be cured 

(y) Barton v. Gill, 12 M. & W. by appearance, Cro. Car. 313 ; Eyres 

315. j;. Cowley, Sir W.Jones, 319. 

(z) Reynolds V. Barford, 7 Man. & (e) 1 Brownl. 37; see Eldrin v. 

Gr. 449 ; 8 Scott, N. R. 237, S. C. Hopkins, 7 Dowl. 146. 

(a) See Master v. Cooper, 1 Price, 



ttiun be a full 
answer, 



RETURNS IN GENERAL. 



91 



stable; it was held, for this omission, void(/). So to aji.fa. chap. v. 
returnable Oct. Mich., a return that the defendant had no goods ^^°^' '^' 
at Mich, is bad, for perhaps the defendant had some before Oct. 
Mich, (g) ; so, a return to a latitat, that the bailiff found the 
defendant insane, and so ill that he could not be moved, is de- 
fective, for not saying that he continued so until the return of 
the writ (A) ; so where a venditioni exponas to sell goods levied 
as to part of the debt, and a fieri facias as to the residue were 
included in the same writ, the sheriffs made a return to the 
venditioni exponas, without making any return as to the fi. fa,, it 
was held bad for this omission (?). 

The return ought to follow the usual precedents, — even a Must be in 
slight departure in this respect is prohibited. Thus a return of "*"" °'^"'' 
" not to be found" instead of " not found" (the usual form of 
return non est inventus) has been holden bad (k). 

The return of the sheriff must not falsify the writ or the The return 
record (I), or be contrary to a former return of the sherifF(»i), falsify tiie 
or of his predecessor (71) ; it must not be against the admittance Tr'a 'former' 
of the party (0). These rules are so easy in application, that it '^*'"''"- 
will not be necessary, excepting by reference to the cases upon 
the subject, (which are not in themselves of much practical use 
at this day,) to enter into further detail on the subject. 

The insufficiency of a return is cured by appearance ; as Return, how 
where the sheriff omits the names of the manucaptors on the 
return to the distringas juratores, this is cured by the appearance 
of the jurors ; so a return of scire feci per visum A. et B., instead 
o( scire feci ^^er A. et B., is cured by appearance {p). And where 
in debt for an escape it was objected that the sheriff's return on 
the original writ was void, the objection was held immaterial ; 

(/) Taste V. Haynes, Sir W. Jones, also Doyley d. White, Cro. Jac. 323 ; 

357. S. C. 2 ]5ulstr. 80. Return to a writ 

(g) Palmer v. Potter, Cro. Eliz. of pmip, "1 could not execute this writ, 

512. the cause therein alleged for the exe- 

(/i) Cavenagh v. Collett, 4 Bar. & cuiion thereof not being true," is bad 

Aid. 279 ; Baker v. Davenport, 8 D. for this reason. Greenshaw v. Emer- 

& R. 606; Peikins v. INleacher, 1 son, 1 Dowl. 337. 

Dowl.iZl. (m) Roll. Abr. Keiurn (E) j Vin. 

(i) Rex V. Sheriflf of Middlesex, 1 Abr, Return (E). 

Marsh. 344. (n) Roll. Abr. Return (F) ; Vin. 

\k) Rex «. Sheriff of Kent, 2 M. & Abr. Return (F). 

W. 316 ; 5 Dowl. 451, S. C. (0) Roll. Abr. Return (G) ; Vin. 

(0 Com. Dig. Retorn (E), 4; Abr. Return (G). 

Moor V. Walts, Salk. 581 j S. C. 1 (p) Vin. Abr. Return (W). 
Lord Raym.613; 12 Mod. 424; see 



SECT, IV. 



12 EXECUTION AND RETl'RN OF WRITS. 

CHAP. V, for after appearance and pleading, no advantage shall be taken 
of such misprision nor of misawarding of mesne process (q). So 
the insufficiency of a return in matters of form may, according 
to a decision of Coleridge, J., be aided by lapse of time. In that 
case a sheriff, on the 6th March, returned to af.fn. " goods in 
hand for want of buyers," omitting to state their value ; and an 
application on the 24th April to quash the return for this defect 
was held to be too late (r). But this doctrine (which seems 
novel as applied to acts of the sheriff) can only apply to returns 
defective in point of form, for a void return cannot be "aided." 
For instance, if a writ be directed to two sheriffs of a town cor- 
porate, and one make the return without his fellow, this is bad, 
and not aided as an insufficient return, for this is no return 
at all (s). 

Where the return is defective, it may be amended, even 
although the return was made in the time of the former 
sheriff(<) ; and even after the death of the sheriff, the court 
will allow an amendment by the under-sheriff(M). Thus, where 
the sheriff returned too small issues, and prayed to amend, it 
was granted (ic). And where the sheriff by negligence omits 
any of the jurors in the distringas which were in the venire 
facias, or returns T. B. for A. B., or returns octo tales for decern 
tales, these shall be amended by the sheriff upon his examination 
in court (y). So where the sheriff returned that the defendant 
was insane, and unable to be removed at the time that the 
officer went to take him, the court allowed him to amend his 
return, by stating that the defendant continued so until the 
return day of the writ, on supporting it by an affidavit (s). 
Where the sheriff returned to a writ of venditioni exponas, as to 
goods taken in execution sufficient to satisfy part of the debt, 
with a Jieri facias for the residue, that he had sold the goods 
already taken, but made no return to the feri facias, the court, 
on an affidavit by the under-sheriff's clerk that it was a mere 
mistake, allowed the return to be amended (o). Where the 

(q) Dalston v. Thorp, Cro. Eliz. Hen. 6, 47. 

767. (a) Bro. Issues, 1. 

(?•) Chambers D.Coleman, 9 Dowl. (!/) Dalton, 189. 

588. (s) Cavenagh v. Colletl, 4 Bar. & 

(s) Lambev. Wiseman, Hob. 70; Aid. 279. 

see also 11 Rep. 4. (a) Rex v. Sheriff of Monmouth, 

(0 Dalton, 189. 1 Marsh. 344. 

(if) Filz. Aineudmcnt, 40, cit. 33 



RETURNS IN GENERAL. 93 



SECT. 



sheriff returned cepi corpus to a writ of mesne process, the chap. 
court, after an attachment granted against the sheriff for not 
bringing in the body, allowed the sheriff to amend his return 
according to the fact, by stating that the defendant was in prison 
in the custody of the sheriff (6). And the same where the sheriff 
had returned " is not to be found" instead of " is not found (c)." 
So where, to a writ of extent, the sheriff returned that he had 
seized money into the hands of her Majesty, w-hich money was 
in the hands of the accountant-general in bankruptcy, and the 
Court of Review declined to order the accountant-general to pay 
over the money to the sheriff (c?), the Court of Exchequer made 
absolute a rule for discharging one which required the sheriff 
to pay the money to the crown, and for amending the return (e). 
But the sheriff ought to apply promptly for such indulgence, for 
he will not be permitted to amend where he has been guilty of 
laches. For instance, where the sheriff falsely returned to a 
fieri facias •' goods in hand for want of buyers," and upon an 
action for a false return being brought, obtained time to plead 
on the usual terms, an application to amend the return to nulla 
bona was held to be too late (/). Where the sheriff, under a 
Ji.fa. and a writ of extent, seized not only the defendant's goods, 
but also goods belonging to a stranger which were on the pre- 
mises, and the sheriff returned to both writs, that he had seized 
goods to the amount, but that they remained in his hands for 
want of buyers ; the sheriff being obliged afterwards, by order 
of the Court of Exchequer, to levy the amount of the extent 
upon the defendant's goods, and not upon the goods of the 
stranger, and having no longer goods of the defendant to satisfy 
the fi. fa., applied to the court for leave to amend his return 
to the latter writ ; the court however refused to allow the 
amendment, saying, that as he had seized sufficient property 
of the defendant under this writ, he must be accountable to the 
plaintiff for it ; had he, as soon as he received the order of the 
Court of Exchequer, stated the facts of the case to that court, 

(6) Rexv.Sheriffof Wihs,8Moore, D. & D, 671. 
518. (e) Rex v. Austin, 10 M. & W. 

(c) Rex «;.Sheriff of Kent, in Potter 691 ; 2 Dowl. N. S. 468, S. C. 
t>. Simpson, 2 M. & W. 316; 5 Uowl. (/) Wyliew. Pearson, 1 Dowl. N. 
451. S. 807. 

(d) See Ex parte Magnay,2 Mont. 



94 



EXECUTION AND RETURN OF WRITS. 



CHAP. 

SECT. 



Amendment 
on motion 
of any person 
interested. 



Return, how 
far conclu- 



they would have relieved him from his embarrassment (^). Un- 
necessary amendments will not be allowed; thus where the 
sheriff returned to a capias, " I have taken the body of the de- 
fendant, whose body remains in the prison of our lord the king, 
under my custody," and the defendant after this return escaped 
from the sheriff on bringing him up to London on a habeas cor- 
pus in another suit, the sheriff, being ruled to bring in the body, 
prayed leave to amend his return by stating that the defendant 
had been in custody at the suit of other persons as well as the 
plaintiff; but the court refused, as the return was substantially 
correct (/<). 

The amendment may be applied for by any person interested, 
and even, it would seem, without making the sheriff a party to 
the rule, if his conduct be not impeached. Where the plaintiff's 
attorney became the defendant's attorney, and improperly pro- 
cured a return to aji.fa. of a sum having been levied greater 
than what was actually levied, an amendment was ordered (i). 

Credence is given to the return of the sheriff: so much so, 
that, as a general rule, there can be no averment against the 
sheriff's return in the same action {k) ; although a party in any 
other action, or in an action against the sheriff, may show that 
such return is false (/), and in favorem vitce a party is not con- 
cluded by the sheriff's return (m). But the sheriff's return of 
a devastavit is not conclusive against an executor {n). And 
where the sheriff returns that the defendant is dead, the plaintiff 
may be received against this return, otherwise the suit would 
abate (o). And although the party cannot aver against the 
sheriflF's return, yet he may show that the person making the 
return is not sheriff (p). Even in another action, the sheriffs 
return is prima facie evidence of the facts contained in it ; as in 
an action for maliciously suing out a/. /a. after a sufficient levy. 



(g) 1 ChiUy's Archbold, 7th ed. 
414 ; see Saunders i;. Bridges, 3 Bar. 
& Aid. 95; but see Tomlinson v. 
Shynn, 4 Moore, 505; 2 B. & B. 77, 
S. C. 

(7i) Ibbotson v. Tindal, 1 Bing. 
156; 7 Moore, 552, S. C. 

(i) Green v. Glassbrook, 2 Bing. 
N. C. 143; 2 Scott, 261, S. C. 

(/c) Dalton, 189, 190, 191 ; Roll. 



Abr. Return (O). 

(0 Dalton, 190; Vin. Abr. Re- 
turn (O). 

(m) Dalton, 191, 192. 

(7i) Gibson v. Brooiie, Cro. Eliz. 
859; Mounson v. Bourne, Sir W. 
Jones, 418; S. C. Cro.Car.519, 528. 

(o) Vin. Abr. Return (O), 22. 

(p) Arundellf. Arundell, Yelv. 34. 



RETURNS IN GENERAL. 95 



SECT. IV. 



the sherifF having returned that he had forborne to sell under the chap. 
first writ, and had sold under the second writ, at the instance 
and with the consent of the then plaintiff, it was held that these 
returns were jnimd facie evidence of such consent (q). The court 
will not try the truth or falsehood of a return or affidavit, but 
will leave parties injured by a false return to their remedy by 
action (r). 

The sherifF, generally speaking, is concluded by his own re- When ihe 

1 ^^^rr^ ^Ti- 11 • 111 shetiflf and 

turn ; and so the bailifi of a liberty, it would appear, is concluded bis officers 
by the sheriff's return, although false, and his remedy is over by a remm. 
against the sherifF(s). Where a sherifF having levied under a 
Ji.fa., after notice that defendant had petitioned the Insolvent 
Court, reiumeil. fieri feci, he was held bound by that return, and 
compelled to pay over the amount to the plaintiff, though the 
defendant was afterwards discharged under the insolvent act(^). 
He ought to have applied to the court in the first instance, to 
relieve him from his embarrassment. But where the sherifF re- 
turned to 3ifi.fa. that he had levied goods, and a commission of 
bankruptcy issued against the defendant on an act of bankruptcy 
committed before the delivery of the writ to the sherifF, which 
goods the sherifF gave up to the assignees, it was held that he 
was not bound by his return, but might show those facts in an 
action brought against him for not selling the goods under a 
venditioni exponas (m). 

The sheriff's officer, for the purposes of his own justification, 
is not concluded by a false return of the sherifF (a:). 

If the sherifF hath any valid excuse for not executing a writ. Excuses for 

, 1 r. • 1 • 11 return. 

he may state such matter of excuse in his return, as that the 
defendant is privileged (?/) ; although it is quite clear that, ex- 
cepting in the case of peers and members of parliament, he is 
not bound to take notice of privilege {z). 

Upon a capias ad respondendum, it is said that a return of tard^ Tardk. 

(q) Gyfford v. VVoodgate, 11 East, v. Pearson, 1 Dowl. N. S. 807. 

297. See Leonard v. Simpson, 2 («) Bridges v. Walford, 6 M. & 

Bing. N. C. 176; 2 Scott. 835. Sel. 42; see also Clutterbuck D.Jones, 

(r) Goubot V. De Crouy, 2 Dowl. 15 East, 78. 

86 ; see Barber v. Mitchell, 2 Dowl. (x) Paiker v. Mosse, Cro. Eliz. 

574; Anon. Lofft, 371. 181. 

(s) Shaw V. Simpson, 1 Lord Raym. (y) See Bro. Retorne de Briefe, pi. 

184. 46. 

(t) Field V. Smith, 2 M. & W. (») See post, chap. 6, sec. 1. 
388; 5Dowl. 735,S. C; seeWylie, 



96 



EXECUTION AND RETURN OF WRITS. 



CHAP. V. 

SECT. IV. 



Languidus. 



Rescue. 
Remedy 

against 
rescuers. 



is bad, for the manifold mischiefs wliich might follow thereon ; 
and it was formerly the practice to amerce the sheriff if he 
returned tarcU («). But if a writ come so late that it cannot be 
executed, there does not seem to be any sound reason why this 
should not be a good return. 

A return that a defendant is so sick that he cannot be removed 
without danger of his life, or remains so sick in prison, is a good 
return (6) ; but in such return it must be shown that the defendant 
continued so ill until the return of the writ that he could not be 
moved (c). A return that the sheriff has relinquished the 
custody of the defendant because he could not be removed with- 
out danger to his life, has been held bad {d). But the court 
will, in such a case, enlarge the time for making the return (e). 
If the sheriff discharge a defendant arrested on mesne process, 
on giving a bail-bond, he will not be liable to an action for re- 
turning languidus ; for that is only an excuse that he had not 
the body : and he is only fineable by the court if he bring not 
in the body, and the party shall not have any remedy against 
him(/). 

To a writ of mesne process, a return that the defendant was 
rescued (g-) out of the custody of the sheriff, or that the defend- 
ant overpowered the officer and rescued himself(/«), is good. 
So a sheriff's return of the answer of the bailiff of a liberty, that 
the defendant was rescued out of the bailiff's custody on mesne 
process, is good (i) ; that is, that the defendant was rescued before 
he was conveyed to •prison; for a return to a writ of mesne pro- 
cess that the defendant was rescued out of prison, is bad (k). 



(a) Fitz. Betorne, 37. 42; Com. 
Dig. Betorne (D), 1. Such a return 
was holden good on a capias, on an 
appeal of murder. Bro. Betorne de 
Brief e, 34; 8 Hen. 4. 21. 

(h) Bro. Betorne de Briefe, 100, 
102; Fitz. Betorne, 94, 105, 122; 
Dait. 213. 

(c) Cavenagh v. Collett, 4 Bar. & 
Aid. 280; Perkins v. Meacher, 1 
Dowl. 21. 

(d) Baker i;. Davenport, 8 D. & R. 
606. 

(e) Jones v. Robinson, 11 M.& W. 
758. 

(/) Boles V. Lassels, Cro. Eliz. 
852. 

(g) May V. Proby, Cro. .Tac. 419 ; 



S. C. 1 Roll. Rep. 388, 440 ; 3 Bulstr. 
198; Hill u. Montague, 2 Lev. 144; 
Lord Gorges v. Gore, 3 Lev. 46. 

(h) Fermor v. Phillips, Holt's N. 
P. C. 537 ; Rex i;. Sheriff of Middle- 
sex, 1 Bar. & Aid. 190; Com. Dig. 
Be^cne (D), 4. 

(i) Lady Russel and Wood's case, 
Cro. Eliz. 781. 

(/c) Crompton v. Waid, Stra. 435. 
See this distinction in Rlay v. Probie, 
1 Roll. Rep. 440; S.C. Cro.Jac. 419 ; 
O'Neill;. Marson, 5 Burr.2812; Roll. 
Abr. Escape (D), 1,2, 3 : — unless the 
prison was broken by the king's enemies, 
although he is liable if broken by trai- 
tors or rebels. Morse v. Shee, 1 Vent, 
239; Southcole's case, 4 Rep. 84. 



RETURNS IN GENERAL. 97 



SECT. 



But to writs of execution, whether to a ca. sa. (/) or Ji. fa. (in), chap. 
it is not a good return, that the defendant or his goods were 
rescued from the sheriff; for in executing such writs, the sheriff 
is ordered by the statute West. 2, to raise the ^wsse comitatus ; 
and herein rests the distinction between rescue on mesne and 
final process ; for in the former the sheriff may, although he is 
not, as in executing final process he is, compelled to, raise the 
posse comitatus (ji). When the sheriff may return a rescue, it is 
necessary to state in the return a legal arrest; therefore a return 
of rescue, which did not state that the defendant was arrested 
within the county, was held bad (o). In some cases it has been 
holden good to return that the defendant was rescued out of 
the custody of the sheriff's bailiff (p); whereas in other cases 
similar returns have been held to be bad, for not alleging that 
the defendant was rescued out of the custody of the sheriff((j^). 
But it would appear that a return either way is good ; for a 
person in the custody of the sheriff's officer is in the custody of 
the sheriff (r). But a return was held bad which stated that the 
defendant was taken by the bailiffs, and hahuerant in custodid 
med quousque such persons rescued him out of the custody of the 
bailiffs (*). It appears necessary to state, in a return of rescue, 
the time(^) and place (?<) where the rescue was made ; but it is not 
necessary to state the day of the caption (a;). Although it seems 
to have been deemed requisite to state the names of the rescuers, 
yet it is conceived that a return would be sufficient without 
stating their names ; for how are the sheriff and his officers to 



(I) May V. Probie, Cro. Jac. 419 ; of rescue out of the custody of a she- 

S. C. 1 Roll. Rep. 388, 440; 3 riff's bailiff and the bailiff of a liberty, 

Bulstr. 198; eitiier on a ca. sa., or see Cro. Jac. 241, and 2 Keb. 217, 
capias utlagatum after judgment, (r) Rex r. Sims, 1 Lev. 214; S.C. 

Dyer, 241 a. Raym. 161. Per Holt, C. J., Salk. 

(m) Rex V. Baldwin, Barnes, 430 ; 586 ; Penfold's case. Sir T. Jones, 

Sliei;. Finch. 2 Roll. Rep. 57; S.C. 197; Rex v. Clapham, 2 Lev, 28. 

Cro. Jac. 514; Sheriff of Surry v, Sfd r/rfe the report of Rest;. Sims, 2 

Udderton, Holt, 145. Keb. 217. 

(n) Noy. 40; 1 Stra. 432. (s) Salk. 586. 

(o) Rex D. Sheriff of Middlesex, I (f) Bro. Retorne de Briej'e, 27; 

Bar. & Aid, 190; see 2 Roll. Rep. Fitz. Cnron. 45, Attachment I; see 

255. also 2 Bulstr. 137. 

(p) Dyer, 241 a, n. ; Webb v. (n) Anon. Moore, 422, pi. 585; 

Withers, 2 Roll. Rep. 255, Wolfreston's case, Yelv. 51 ; see also 



(q) Dyer, 241 a. Pei- Buller, J., 2 Bulstr. 137, 
2T. R. 156; I Sid. 332; 2 Roll. Kep, (x) Palm. 532, 

263. For the distinction of a return 



98 EXECUTION AND RETURN OF WRITS. 



CHAP. V. know the names of persons composing a mob(v/)? The return 
^^^^' ^^' of a rescue is in the nature of a conviction, and the courts will 
grant an attachment thereon in tlie first instance, the return of 
a rescue not being traversable (a). For a rescue on mesne pro- 
cess the plaintiff may bring an action against the rescuers (a); 
but where the rescue is in execution, either the sheriff or plain- 
tiff may bring the action (b) : in such action he must state and 
prove the judgment, and that the taking was lcin'fid(c). 
Mamiavi jf the bailiff of a liberty have the execution and return of the 

ballivo. •' . . • 1 • 1 

writ, by reason of the defendant or his goods bemg withm the 
liberty, it is a good return for the sheriff to say that he com- 
manded the bailiff to do execution of the writ ; if the bailiff of 
the franchise has not made a return, the sheriff should return 
accordingly (fZ) ; or if he have made a return, then the sheriff 
should return mandavi ballivo, with the answer of the bailiff (c)- 
But if a bailiff answers some matter which is insufficient as a 
return, the sheriff should return nullum dedit responsum, for an 
insufficient answer is no answer at all (/). If the sheriff return 
mandavi ballivo where he ought to have entered the liberty, the 
return is void, and the sheriff may be attached {g). It would 
appear, that a return by the sheriff, that he had commanded the 
bailiff of the liberty to whom the execution of the writ belonged, 
is sufficient, without mentioning the name of the place whereof 
he was bailiff (/i). A return to a writ of inquiry by the sheriff, 
that he had commanded the bailiff of a liberty to execute it, is 
bad, for it is the sheriff's duty to execute it(i). Where the 
sheriff and bailifTof a franchise had both obtained time to return 
a writ, and the sheriff afterwards returned it, the court refused 
to compel the high bailiff to return the mandate (Jc). 

(y) See Sir W. Jones, 201; Cro. (ft) Myric v. Coughlon, Cro. Car. 

Jac. 419; 1 Bar. & Aid. 190. 109. 

(s) Rex I'. Pember, Rep. temp. (c) Earl of Bristol v. Wilsmore, 2 

Hard. 112; Faucet v. CaUen, T. Dowl. & Ry. 755; S. C. 1 B. & C. 

Jones, 39; Anon. Salk. 586; 2 Vent. 514. 

175 ; Rex v. Thomas Elkins, 4 Burr. (</) See Forms, Append. 

2129; Rex v. Phillips, Barnes, 429. (e) Id. ibid. 

Although it was formerly held to be (/) Roll. Abr. Ileturn (M), 2,3; 

traversable, Dyer, 212 a; T. Jones, Bro. Retonie de Brief e, 4T. 

39; the only remedy the rescuer has, (g) Fitz. Retorn, 5^. 

if the return be false, is by action (h) Roll. Abr. /fean-« (N), 1. 

against the shei iff. See Rex i;. Hors- (i) Virely d. Gumstone, Hob. 83 ; 

ley, 3 T. R. 562, Roll. Abr. Relurn (N), 2. 

(a) Kent v. Elwis, Cro. Jac. 241. (/c) Jackson v. Taylor, 5 Dowl. 

140. 



RETURNS IN GENERAL. 99 

An insufficient return is as no return, and therefore the courts chap. v. 
will srant an attachment against the sheriff if he make an insuffi- ^^^^' ^' 



cient return : or on a bailable capias, he may be ruled to bring in Liable to an 

■'_•'. " allachment, 

the body (/) : indeed, if he return the insufficient answer of the if ihe remm 
bailiff of a liberty, it would seem that he would be liable to an cient. 
attachment (m). 

The various forms of returns to different writs will be more Different 
conveniently treated of hereafter, under the head of each par- [eiUJ-n"'^ 
ticular writ. 



not entitled 
to fees. 



Section V. 

Of the Remuneration to Sheriffs for executing and returning 
J frits. 

By the common law, it was the duty of the sheriff to do exe- At the com- 
cution of all the king's writs without any fee, remuneration, or "herit/wa^ * 
reward; nor is the sheriff entitled at this day to any remunera- 
tion for executing a writ, excepting by the provisions of par- 
ticular statutes. Thus the sheriff, before 1 Vict. c. 55, was not 
entitled to any fee for executing an attachment («), or a writ of 
capias utlagatum against the goods of the defendant (o). In 
affirmance of the common law, it was provided by the statute of 
Westminster 1, c. 26, " That no sheriff shall take any reward 
to do his office ; but shall be paid of that which they hold of the 
king, and he that so doth shall yield twice as much, and be 
punished at the king's pleasure" (p). 

It was in the course of time, however, considered just and 
politic to allow the sheriff a remuneration for his trouble, and 
several statutes have from time to time been passed for the pur- 
pose of carrying out this principle. The principal statutes now 
in force, are ii8 Eliz. c. 4 (poundage) ; 3 Geo. 1, c. 15 (crown 
debts, elegit, habere facias possessionem) ; 8 Geo. 1, c. 25 (extent 
and liberates); 43 Geo. 3, c. 46, s. 5 (allowing plaintiff to levy 
pioundage and expenses of execution in certain cases) ; and 7 Will. 4 
& 1 Vict. c. 55 (fees payable to sheriffs upon the execution of 
civil process). 

(I) Rex V. Sheriff of Middlesex, 1 (o) Graham v. Grill, 2 M. & S. 

Bar. & Aid. 190. 294. 

(m) Roll. Abr. Return (M). 1,2. (p) See 2 Inst. 210, for Lord Coke's 

(n) Rex V. Palmer, 2 East, 411. commentary on this statute. 

II 2 



100 EXECUTION AND RETURN OF WRITS. 

CHAP. V. The general provisions of the statutes, with the decisions upon 
^^^'^' ^"' them, will first be stated, and then the provisions as to particular 
writs. 

By the statute 28th Elizabeth, c. 4(r/), it is enacted, *' That 
it shall not be lawful to or for any sheriff, under-sheriff, bailiff 
of franchises (>), or liberties, nor for any of their or either of 
their officers, ministers, servants, bailiffs, or deputies, nor for any 
of them, by reason or colour of their or either of their office or 
offices, to have, receive, or take of any person or persons what- 
soever, directly or indirectly, for the serving and executing of 
any extent or execution upon the body (.v), lands (<), goods or 
chattels of any person or persons whatsoever, more or other 
consideration or recompense than in this present act is and shall 
be limited and appointed, which shall be lawful to be had, re- 
ceived, and taken ; that is to say, twelve pence of and for every 
twenty shillings, where the sum exceedeth not one hundred 
pounds ; and sixpence of and for every twenty shillings, being 
over and above the said sum of one hundred pounds, that he or 
they shall so levy or extend, and deliver in execution, or take the 
body in execution for, by virtue and force of any such extent or 
execution whatsoever ; upon pain and penalty that all and every 
sheriff, under-sheriff, bailiff of franchises and liberties, their and 
every of their ministers, servants, officers, bailiffs, or deputies, 
which at any time shall directly or indirectly do the contrary, 
shall lose and forfeit to the party grieved his treble damages, 
and shall forfeit the sum of forty pounds for every time that he, 
they, or any of them shall do the contrary ; the one moiety 
thereof to be to our sovereign lady the queen, her heirs and suc- 
cessors, and the other moiety thereof to the party or parties that 
will sue for the same by any plaint, action, suit, bill, or informa- 
tion, wherein no essoign, wager of law, or protection shall be 
allowed." 

(q) This statute has been impro- (r) Where a writ is executed within 

periy cited as the 29th Eliz. See a liberty by the bailiff of that liberty, 

Rumsey v. 'luffneli, 2 Bing. 255; he, and not the sheriff, is entitled to 

Savage, q. t. i;. Smith, 2 Bla. Rep. the fees under this statute. See Latch, 

1101, where the statement of this act 52 ; Salk. 331. 

as of the 29th Eliz. was held fatal. (s) See now as to ca. sa. 5 & 6 Vict. 

See also Brock well d. Lock, Salk. 331. c. 98, s. 31, post. 

It has not been repealed by 1 Vict. (t) See now as to /lafcereyacias and 

C.55; Davies v. Gritfiths, 4 M. & W. elegit, 3 Geo. 1, c. 15. s. 16; Nash v. 

377 ; 7 Dowl. 204, S. C. ; Pilkington Allen, 1 Dav. & M. 16. 
V. Cooke, 16 M & W. 615. 



FEES AND POUNDAGE. 



101 



Provided always, that this act or any thing therein contained, chap. v. 



extends. 



shall not extend to any fees to be taken or had for any execution L_L. 

within any city or town corporate." This proviso has been con- J"^*iJ5'"j,°po. 
strued to mean, that if the sheriff, bailiff of a franchise, or other "'e. 
officer, execute any execution on a judgment given in the courts 
at Westminster, within a city or town corporate, he is not to be 
deprived of the fee given by the statute; but if the bailiff or 
other officer execute process on a judgment given in a court of 
a corporation or liberty, he is within the proviso, and not enti- 
tled to fees within the statute (it). 

The amount of the fee to be taken is not expressed in very Amount to be 
clear words in the statute 28 Eliz. c. 4 ; but it has been decided ^ emz. c. 4. 
in a variety of cases, that the sheriff is entitled under that sta- 
tute to one shilling in the pound for the first 100/., and sixpence 
in the pound for every pound above 100/. (x). 

This statute, 28 Eliz. c. 4, regulates the fees to be taken on To what writs 

1 - 1 / N . p the statute 

2iji.fa. {ij), but does not apply to an attachment (2), a writ 01 as emz. c. 4, 

capias ullagatum {a), a writ of habere facias possessionem ox sei- 

sinam (b), the seizure of land under a writ of elegit (c), a writ of 

levari facias for a crovvn debt((/) ; a writ of ca. sa. since 1 May, 

1843 (e); or money taken on a bailable capias, and paid into 

court by the sheriff, under 13 Geo. 3, c. 4 G, s. 2, or 7 & 8 Geo. 4, 

c. 71 (/) ; or an execution upon a judgment of non pros. (g). 

The statute 1 Vict, c, 55, intituled An Act for better regulating 
the Fees payable to Sheriffs upon the Execution of Civil Process, 
after reciting that ' it is expedient to amend the laws relating to 
' the fees payable to sheriffs, under-sheriffs, deputy sheriffs, she- 

(u) Brockwell v. Lock, Salk. 331 ; 2 Sid. 155 ; 1 Vent. 351. 
S. C. 5 Mod. 97 ; Jesson, Sheriflof (c) Nash i;. Allen, 1 Dav.& M. 16. 

Coventry, v. Wesley, cited in Cro. (rf) Stephens d. Rothweli, 6 ftloore. 

Car. 287; Latch, 18, 52; Poph. 338 ; S. C. 3 Bred & Bing. 143 : see 

173 ; Palm. 399 ; sed vide The Sheriff Lake v. Turner, 4 Burr. 1981, where 

of Gloucestei's case, Cro. Eliz 264. the suit was for the benefit of the 

(.1 ) Lyster v. Bromley, Cro. Car crown. 
286; S.C. Sir W. Jones, 307. (e) 5 6t 6 Vict. c,98, s. 31. Quicre, 

{y) Tyson v. Paske, 2 Lord Raym. whetherthisenactmentapplies to writs 

1212; S. C. Salk. 333; Jayson v. tested but not executed before 1 May, 

Hash, Salk. 209. As to the amount, 1843. 

see Price t;. Mollis, 1 IM. 6c Sel. 105; if) Stewart v. Bracebridge, 2 B. 

Nash V Allen, 1 Dav. & IM. 16. & .\ld. 770 ; 1 Chit. R. 529, S. C; 

(:) Rex V. Palmer, 2 East, 411 ; Haines y. Nairn, 2 Dowl. 43; Hume 

Rex V. SherilVof Devon, 3 Dowl. 10, v, Bruce, 6 Moore, 124. 

(a) Grahamr.Grill.2M.&S.294. (g) Anon., 2 Chit. Rep. 353. 

(h) Peacock v. Harris, Salk, 331 ; 



102 EXECUTION AND RETURN OF WRITS. 

CHAP. V. ' riffs' agents, bailiffs, and others the officers or ministers of 
^^^'^' ^'' ' sheriffs in England and Wales, and to give the Courts of Record 
' at Westminster Hall a due control over such fees ; and also 
' to provide a summary remedy against such officers and others 
' as shall extort or receive other or greater fees than by law 
' they shall be entitled to : and whereas divers enactments 
' touching the said officers, contained in certain ancient statutes, 

* have become inconvenient, and ought to be repealed ; be it 

* therefore enacted by the Queen's most excellent majesty, by 
' and with the advice and consent of the lords spiritual and tem- 
' poral, and commons, in this present parliament assembled, and 

* by the authority of the same, that so much of an act passed in 
Part of 42 ' the forty-second year of his late majesty King Edward the 

' Third, intituled Estreats shall be shewed to the party indebted, 

' and that which is paid shall be totted : no sheriff ^'C. shall con- 

' tinue in Office above a Year, as relates to the time during which 

' under-sheriffs and sheriffs' clerks may abide in their respective 

the act 1 Hen. ' officcs ; and also an act passed in the first year of the reign of 

' his late majesty King Henry the Fifth, intituled Sheriffs' Bai- 

' Iffs shall not be in the same Office in Three Years after : Sheriffs' 

' Officers shall not be Attornies : and also so much of an act 

and pan of ' passed in the twenty-third year of the reign of his late majesty 

eg/'' * King Henry the Sixth, intituled No Sheriff shall let to farm his 

' County or any Bailiwick : the Sheriffs' and Bailiffs' Fees and 

* Duties in many Cases, as relates to the fees to be taken by she- 

* riffs, under-sheriffs, sheriffs' clerks, and other officers and 
repealed. ' ministers of sheriffs, be and the same are hereby repealed.' 
Fees to be ~' ' ^^^ ^e it enacted, that from and after the passing of this 
u'x'illlg'iffi^er * ^^^ ^'- shall be lawful for sheriffs, or their officers concerned in 
Westminster ' *^^ execution of process directed to sheriffs, to demand, take, 

' and receive such fees, and no more, as shall from time to time 

* be allowed by any officer of the several courts of law at West- 

* minster charged with the duty of taxing costs in such courts, 
' under the sanction and authority of the judges of the said 
' courts respectively.' 

Fees to the 5. ' And be it enacted, that from and after the passing of this 

Lancashire ' ^^^> ^^^ sheriffs of Lancashire and Durham, and their officers, 
and Durham. < gj^j^u ^^^^^ .^^^j ^^ entitled to the like fees, and no more, upon 

* process issuing out of the Court of Common Pleas at Lancaster 

* and out of the Court of Pleas at Durham respectively, as from 



FEES AND POUNDAGE. 103 

' time to time shall be allowed under the authority of this act to chap. v. 
' sheriffs upon process issuing from the superior courts at West- faEcx. v .^ 
' minster ; and that the said Court of Common Pleas at Lan- 

* caster and Court of Pleas at Durham respectively, or any judge 

* thereof respectively, being also judge of one of the superior 
' courts at Westminster, shall have the same powers in every 
' particular, with respect to offences against this act upon process 

* issuing out of the said Court of Common Pleas at Lancaster 

* and Court of Pleas at Durham respectively, as are hereinbefore 

* given to the courts at Westminster respectively in respect of 
' process issuing from those courts.' 

The following is the list of fees prepared pursuant to the 2nd THbie of fees, 
section of the act, and sanctioned by the judges. 



TABLE OF FEES. 

A Table of Fees to he taken by the Sher/Jfs, Under- Sheriffs, 
Defuty- Sheriffs, Sherffs' Agents, BaUffs, and others the Officers 
or Ministers of Sheriffs in England and Wales, pursuant to the 
Statute of 1 Vict. c. 55. 



For every Warrant which shall be granted by the Sheriff to his On warrants 

/^/v> tiT • T-» r ct ' l/^r. 7 aiiilarrcsts. 

Officers upon any Writ or Process : — iSee post, 108, as to the 
charge where there are several defendants/] 

£ s. d. 

In London and Middlesex 2 6 

And on crown (//) and outlawry process, an addi- 
tional 2 6 

In all othor counties, where the most distant part of 

the county shall not exceed 100 miles from London 5 

Not exceeding 200 miles G 

Exceeding 200 miles 7 

For an arrest in London 10 G 

In Middlesex, not exceeding a mile from the General 

Post Office 10 G 

Not exceeding seven miles from same place 1 1 

(/() But by Reg. Gen. IM. 10 Virt. of fees as relates to process at the suit 
(16 Nov. 1846) so much of lliis table of the crown is annulled. 



104 EXECUTION AND RETURN OF WRITS. 

CHAP. V. A *• "• 

^^^^' ^' In other counties, not exceeding a mile from officer's 

residence 10 6 

Not exceeding seven miles 1 1 

Exceeding seven miles 1 H 6 

For conveying the defendant to gaol from the place 

of arrest (i) per mile 10 

For an undertaking to give a bail bond 10 6 

For a Bail Bond. 

If the debt shall not exceed ^50 10 6 

Ditto £100 1 1 

Ditto i:i50 1 11 6 

Ditto £300 2 2 

Ditto £400 3 3 

Ditto £500 4 4 

If it shall exceed £500 5 5 

For receiving money under the statute upon deposit 
for arrest, and paying the same into court, if in 

London or Middlesex 6 8 

If in any other county 10 

For Filing the Bail Bond. 

If the arrest be made in London or Middlesex .... 2 

If in any other county 4 

Assignment of Bail or other Bond. 

If in London or Middlesex 5 

If in any other county, including postage 7 6 

Return to ha- For the rctum to any w^rit of habeas corpus, if one 

beas corpus. . ^ i r> n 

action 12 

And for each action after the first 2 6 

For taking For the bailiff to conduct prisoner to gaol .. per c?iem 10 

prisoner o ^^^ travelling expenses per mile 10 

Search for For searching offices for detainers 10 

detainers. Bailiff's messenger for that purpose 2 6 

Forexecution To the bailiffs, for executing warrants on extent, ca- 

writs. pias utlagatum, levari facias, fieri facias, ca. sa., ne 

exeat, attachment, elegit, writ of possession, for- 

(i) See for bailiff's fee, post. 



105 



CHAP. 
SECT. 



Man in 

possession. 



Sale by 
auction. 



FEES AND POUNDAGE. 

£ s. d. 

feited recognizance, process from pipe office, and 

other like matters, for each, if the distance from 

the sheriff's office or the bailiff's residence do not 

exceed five miles 1 1 

If beyond that distance per mile 6 

On distringas, in London 5 

In Middlesex, not exceeding five miles from General 

Post Office 5 

Exceeding five miles 10 

In other counties, not exceeding five miles from 

officer's residence 5 

Exceeding five miles 10 

For each man left in possession {k\ when absolutely 

necessary — 

If boarded per diem 3 G 

If not boarded per diem 5 

For every sale by auction (/), notwithstanding the 

defendant should become bankrupt or insolvent, 

where the property sold does not produce more 

than 300^., 5 per cent. — 480/., 4 per cent. — 500/., 

3 per cent. — and where it exceeds 500/., 2\ per 

cent. 

For the certificate of sale to save auction duty 2 6 

Bond of indemnity, besides stamps 1 10 Indemnity, 

Certificate of execution having issued for record .... 5 

On Writs of Trial and Inquiry. 

For a deputation 1 1 

On lodging writ for entering cause and warrant for 
summoning jury, which fee shall be forfeited iij 
case of countermand of trial 4 

On Trial or Inquisition. 
Sheriff for presiding 1 1 

(k) The term " possession-money" Canterbury, 11 M. & W. 619. So, 
does not include the expense of the if the execution creditor pays the ex- 
keep of cattle seized by the sheriff. penses of a sale by appraisement, he 
Gaskell v. Sefton, 14 M. & \V. 802. cannot set it off against the sheriff's 

(/) No fee for appraisement on any poundage. Marshall v. Hicks, 16 

other kind of sale i Phillips u. Viscount Law J,, Q. B. 134. 



Certificate of 
execution. 



lOG EXECUTION AND RETURN OF WRITS. 



CHAP. 

SECT. 



Replevin. 



£ s. d. 
Bailiff for summoning jury, and attendance in court 4 

And if held at the office of the under-sheriff — 
For hire of room, if actually paid, not exceeding. .. . 10 
For travelling expenses of under-sheriff from his office 

to place where trial or inquisition held. . . .per mile 10 

To the bailiff, from his residence per mile G 

In all cases in which it shall appear to the 
master that a saving of expense has accrued 
to the parties by reason of a writ of trial 
having been executed by deputation, the 
fee for such deputation shall be allowed. 
On writs of extent, elegit, capias utlagatum, and 
others of the like nature ; for summoning the jury, 

use of room, presiding at the inquisition, &:c 2 

Jury , 

For travelling expenses of under-sheriff from his 

office to the place of inquisition per mile 

For drawing and ingrossing the inquisition, per folio 
For a summons for the attendance of a witness 

\^As to the apportionment of the travelling expenses of the 
under-sheriff and bailiff', see post, 108.] 

In Replevin. 
[Bo»id, see post, 108.] 

Precept to bailiff 2 6 

Notice for service on defendant 2 6 

Broker, where the sum demanded and due shall ex- 
ceed 201., and shall not exceed 50/., for appraise- 
ment and affidavit of value 10 6 

Where it shall exceed 50/ 1 1 

And his travelling expenses from his residence to the 

place where the goods are per mile G 

Bailiff for summoning parties and delivering goods 

to tenant 1 1 

And his travelling expenses same as broker. 
For the warrant, record, and return of a re. fa. lo., 

accedas ad curiam, pone, or writ of false judgment IG 6 



2 





2 





1 





1 


G 


5 






FEES AND POUNDAGE. 

£ S. d. 

For writ retorno babendo 4 6 

For each summons on a writ of sci. fa., or for the 

service of writ of capias where no arrest 5 

And mileage j^er mile 10 

For recording each demand or proclamation under 

writs of outlawry 2 

For bailiff for making each demand or proclamation 

on writs of outlawry in London and Middlesex ..026 

In other counties 5 

And travelling expenses, if the distance shall exceed 

five miles, then for every mile beyond that distance 6 
For any supersedeas, writ of error, order, liberate, or 

discharge to any writ or process, or for the release 

of any defendant in custody (unless in the prison 

of the county), or of goods taken in execution. .. . 4 6 
For the return of any writ or process, and filing same, 

exclusive of the fee paid on filing 1 

Jury Process {rri). 

For return to common venire 3 6 

The like to special 5 

The like on distringas or habeas corpus for common 

jury 12 

The like for special jury 14 

The like with a view 1 

The like to a traverse venire 14 6 

For attendance naming special jury 2 2 

Twenty-four warrants to summon special jury 1 4 

For bailiff for summoning each special juror 2 

Sheriff attending in court 1 1 

For attending a view, the fees as allowed by 

rule of court, Trinity Term, 7 Geo. 4, 1826. 

For any duty not herein provided for, such 

sum as one of the masters of the Courts of 

King's Bench or Exchequer, or one of the 

(m) No greater fees, it seems, when expenses of summoning knights in a 
jurors reside at a distance, Lane v. real action, ibid. 
Sewell, 1 Chit. R. 175. Nor extra 



107 



CHAP. V. 
SECT. V. 



Summons on 
sci. fa. 



Proclamalion 
of oullawry. 



Supersedeas, 
discharge, 
&c. of person 
or goods. 



Return. 



108 EXECUTION AND RETURN OF WRITS. 

CHAP. V. £ s. d. 

^^^'^' ^' Prothonotaries of the Court of Common 

Pleas, may upon special application allow. 

\_Signed by all the Judges.] 



SHERIFFS' FEES— Addenda. 
Bond in Replevin. 
Instead of the allowance of the fees upon the same 
scale as the bail-bond, the fee of one pound one 
shilling only is allowed, whatever be the amount, 
if above 20l 1 1 

Fees on Writs of Trial and Inquisition. 

The travelling expenses of the under-sheriff from 
his office, and of the bailiff from his residence, to 
the place where the trial or inquisition is held, are 
to be apportioned rateably to the parties, if more 
than one trial or inquisition be held at the same 
time and place. 

[^Signed by all the Judges.] 

Where there are several defendants in a writ of capias, and 
warrants are issued thereon by the under-sheriff against more 
than one defendant, no more shall be charged in any case for 
each warrant, after the first, than two shillings and sixpence. 

\_Signed by eight of the Judges.'] 



Amount of The above statute of 1 Vict. c. 55, has not repealed any sta- 

recoveTabie.*^' tutes except ihose expressly mentioned in the recital (w). 

Before the passing of 1 Vict. c. 55, there was much confusion 
as to the remuneration of sheriffs. The Court of Common Pleas 
seem to have been of opinion, that where the sheriff did any 
thing beyond his official duty, as in allowing time for dividing 
the property seized into lots, for the benefit of selling them to 
more advantage, at the instance of the defendant, the officer was 
entitled to some remuneration beyond poundage (o). But the 

(n) Davies v. Griffiths, 4 M. & W. (o) Stephens d. Rolhwell, 6 Moore, 

377; 7 Dowl.204,S. C. ; Filkington 338; S. C. 3 Brod. & Bing. 143, 
V. Cook, 16 M. & W. 615. Sed vide 3 Campb. 374. 



FEES AND POUNDAGE. 109 



sheriff could not then charge the expenses of seUing the goods chap. v. 

hy auction, because he was bound to sell the goods himself: yet — — 1— 

if the auction were at the request of the plaintiff or defendant, 
the party so requesting must have paid the expenses of it (p). 
And it was held that the sheriff could not legally retain out of 
the sum levied on a fi.fa. the expenses of keeping possession 
of the goods pending an injunction out of Chancery, and for so 
doing he was adjudged to be guilty of extortion {q). At the 
present day, these and similar questions may be answered by 
reference to the table of fees prepared pursuant to 1 Vict. c. 55 ; 
the general effect of which act is to restrict the sheriff to the 
fees mentioned in that table and poundage (when allowed by 
other statutes), no matter how great may be the expenses in- 
curred in the performance of his duty (r). There is, however, a 
provision in the table of fees, that for any duty not therein pro- 
vided for the sheriff is to be allowed such sum as one of the 
Masters of the several courts of common law may upon special 
application allow. It may be doubted how far this sweeping 
clause is consistent with the 1 Vict. c. 55, s. 2, which requires 
the sanction and authority of the judges. It has been laid down 
in a recent case, that the sheriff, on making a levy under an exe- 
cution, is entitled, under this table of fees, to a per-centage on 
the whole proceeds of the sale, including a year's rent paid by 
him to the landlord ; but not to an allowance of such extra 
expenses, incurred by him respecting the levy, as are not in- 
cluded in the table of fees (s). 

It is said in an Anonymous case(<), " a sheriff shall not be PonmUge 
entitled to poundage if judgment irregular." This dictum, how- wh'er^J'j'udg-' 
ever, in its generality, seems equally opposed to justice and to ^(^"ou^ure* 
later authorities. In a case where the sheriff had levied the ^"'*''" 
amount and his poundage under 2i fi.fa., and the writ was after- 
wards set aside for irregularity, and the plaintiff compelled to 
refund the whole amount to the defendant, it was held that the 

(p) Per Buller, J., Woodgate v. 413 ; 9 Dowl. 221,S.C. See Buckle 

Knatchbul), 2 T. R. 157 ; Bilke v. v. Bewes, 3 B. & C. 688 ; 5 D. & R. 

Havelock, 3 Campb. 374 ; Stephens 595. S. C. ; Stephens v. Rothwell, 6 

V. Rothwell, 6 Moore, 338 ; S. C. 3 Moore, 338 ; 3 Brod, & B. 143, S. C. 

Bred. & Bing. 143. (s) Davies v. Edmonds, 12 M. & 

(9) Buckle V. Bewes, 5 Dowl. & \V. 31. 

Ry. 495 ; S. C. 3 Bar. & Cres. 688. (e) Lofft, 253. 

(r) Slater t>. Hames, 7 M. & W. 



110 EXECUTION AND RETURN OF WRITS. 



CHAP. V. sheriff was entitled to retain his poundage {u). And in a later 
— ^^^Il^^ case, where the sheriff, having levied under afi.fa., on the 
judgment and execution being set aside for irregularity, with the 
plaintiff's assent, restored the amount of the levy to the defend- 
ant, it was held that he might sue the plaintiff for his pound- 
age (x). The principle of these decisions will probably be held 
applicable to the fees which the sheriff is entitled to receive 
under 1 Vict. c. 55. Cases have occurred in practice, in which 
the plaintiff and defendant, on a compromise, have, with a view 
to defraud the sheriff of his fees and poundage, procured the 
judgment and execution to be set aside for irregularity by 
consent. It is hardly necessary to observe, that in such a case, 
independently of any summary remedy which the Court might 
apply, the sheriff's right of action against the plaintiff would 
not be affected. 
Poundage On a writ oi ji.fa., besides the expenses allowed under the 

and expenses g(.i^gj^^,]g ^f fees pursuaut to 1 Vict. c. 55 (ante, p. 103), the 
sheriff is also entitled to poundage under the 28 Eliz. c. 4 (ante, 
100). In order to entitle the sheriff to poundage under that 
statute, there must be an actual levy; and the sheriff is not 
entitled to poundage if the money is paid to him without any 
levy {y). Consequently a defendant, against whom s. fi. fa. is 
issued, may stop its execution by tendering to the sheriff the 
amount and expenses without poundage: and if the sheriff pro- 
ceeds to levy for it after such tender, the Court will compel 
him to refund {z). Nor is the sheriff entitled to poundage on 
more than the sum he actually receives under the execution, 
though the amount claimed or seized be greater (a). It is even 
stated (6), that " it seems, on inquiry into the practice, the 
sheriff cannot have poundage until the goods are sold." This 
proposition, however, if correct, does not apply to a case where 
after the seizure of the goods the parties enter into a compro- 
mise before the sheriff sells them. In such case the sheriff 

(it) IBullen V. Ansley, 6 Esp. 111. v. Ilutcliinsou, 2 Dowl. &: L. 43. 
See Earle v. Plummer, Salk. 332. (a) Rex v. Robinson. 2 C. M. & 

(x) Rawstorne v. Wilkinson, 4 M. R. 334 ; 4 Dowl. 447, S. C. 
& Sel. 256. (b) Anon. Lofft, 433 (H. T. 14 

(y) Graham v. Grill, 2 M. & Sel. Geo. 3, K. B.) See per Lord Elien- 

296. borough, Bilke i'. Havelock, 3 Campb. 

(2) Colls u. Coates, 11 Ad. & El. 374. 
826 j 3 Per. & D. 51 i, S. C. 3 Brine 



FEES AND POUNDAGE. 



Ill 



CHAP. V. 
SECT. V. 



has been held to be entitled to his poundage (d). It is observ- 
able that the words of the statute are " levy or extend a7id de- 
liver in execution." Therefore the sherifT is not entitled to 
poundage on a sum of money paid over to a landlord under 
8 Anne, c. 14 (e). An action is not maintainable on an implied 
promise to pay a sheriff the expenses of seizing and keeping 
possession under aji.fa., which was ultimately abandoned on 
account of the refusal of an indemnity, even after the claim has 
been recognized by payment of money on account (/). Under 
Q.Ji.fa. against a defendant, the poundage and expenses may be 
levied, even, it seems, though there be no indorsement to that 
effect (g). As to levying the amount of poundage and expenses, 
see further, page 114. 

With respect to poundage and fees on a ca. sa., it is enacted Poundage 
by 5 & G Vict. c. 98, s, 31, " that after the 1st day of March, of ca.sa. 
1843 (Ji), no poundage shall be payable to sheriffs and others for 
taking the body of any person in execution, but there shall be 
payable to the sheriff or other person having the return of writs, 
upon every such execution against the body, such fees only as 
shall be allowed to be taken by sheriffs or other officers con- 
cerned in the execution of process under the sanction and au- 
thority of the judges of the courts of common law at West- 
minster, pursuant to 1 Vict. c. 55." The law applicable to a 
ca. sa. previous to that day will be found in the note(«). The 



(d) Alchin I). Wells, 5 T. R. 470. 

(e) Goie V. Goflon, Str. 653. 
(/) Bilke V. Havelock, 3 Campb. 

374; Lane v. Seweli, I Chit, 175. 
See iviaybery v. Mansfield, 16 Law J. 
Q. B. 102. 

(g) Curtis V. IMayne, 2 Dowl. N. 
S. 37. 

(ft) It seems the statute does not 
apply where the party was taken on 
the cii. sa. before that day. iiunbury 
1'. Matthews, 1 Car. & Kir. 380. 

(i) On a ca.sa. the sheriff, before 
5 & 6 Vict. c. 98, s. 31, was entitled 
to the poundage allowed by the statute 
28 Eiiz. ; but where the ca. sa. issued 
only for a part of the sum recovered, 
it was provided by statute 3 Geo. 1, 
c. 15, s. 17, that the sheriff' should 
not demand or t.ike poundage for any 
greater sum than the debt bond fide 
due to the plainiift'; which sum the 



plaintiff is obliged to mark on the writ 
before it is delivered to the sheriff. 
And by the same statute it is declared 
to be extortion to offend against that 
act, and subjects the paity to the pe- 
nalty of double the sum extorted, and 
treble damages. And if a mistake was 
made in the indorsement, and the sum 
was reduced by judge's oider to the 
correct amount, tiie sheriff" was held 
entitled to poundage on the reduced 
amount only. Evans v. IManero, 7 
M. & W. 463 ; 9 Dowl. 256, S. C. 
The sheriff was entitled to poundage 
on a ca. sa., although the defendant 
went to prison without paying the 
debt ; Lake i'. Turner, 4 Burr. 1981 ; 
or although the defendant was already 
in custody of the sheriff when the ca. 
su. was delivered to him ; Tayler i;. 
Ward, Tidd's Prac. 1084, 8th ed. 



112 EXECUTION AND RETURN OF WRITS. 



CHAP. V. plaintiff' cannot levy under a ca. sa. the expenses of the execu- 
sECT^jf^ tion above the sum recovered by the judgment, unless by ex- 
press authority from the defendant (^). It seems that there is 
no remedy for extra costs incurred in consequence of the defend- 
ant's being too ill to be removed (^). 
Tnd'etpenses '^^^ sheriff is not entitled to poundage on process at the suit 
writ's?"^" of the crown under the provisions of the 28 Eliz. ; his claim for 
poundage on such writs is regulated by the statute 3 Geo. 1, 
c. 15, s. 13, 14, which will be treated of in the chapter on Ex- 
tents (to). For other expenses, see the table of fees, p. 105, 

Poandage [t has been stated, that the sheriff" was not entitled to pound- 

ana e!cpen5es ^ 

on an elegit, age under the 28 Eliz. for executing a habere facias seisinam, or 

habere fa- ° . . . 

cias posses- possessionem, or an elegit against land. By the statute 3 Geo. 1, 

sionem or ..„„ . 

seisinam. c. 15, s. 16, for ascertammg fees for executing writs of elegit 
and of habere facias seisinam or possessionem, it is enacted, that 
" no sheriff", bailiff" of liberty, &c. shall take, demand, or receive, 
by colour of their office, ^for executing a writ of habere facias 
seisinam or possessionem, any greater fee than 1*. for every 
pound of the yearly value of any manor, messuage, lands, tene- 
ments, and hereditaments, whereof possession or seisin shall be 
by them or any of them given, where the whole exceedeth not 
the yearly value of 100/., and the sum of 6c?. only for every 1/. 
per annum over and above the yearly value of lOOl." Although 
this section of the statute professes to have been passed for the 
purpose of ascertaining the fees upon an elegit, yet there is no 
mention whatsoever made of elegits in the enacting part of the 
statute. Nevertheless the sheriff", for executing an elegit, is not 
entitled to poundage upon the whole debt, but only on the value 
of the lands extended (?»). Where goods are taken under an 
elegit, it seems the sheriff" is entitled to poundage on their value, 
just as he would under z.fi.fa. 
Who to pay In general the party ^at whose suit the writ is issued must 
expenses! ''" bear the expenses of execution, and has no remedy against his 
debtor, except by express agreement, as usual in a judge's order, 
warrant of attorney or cognovit. 

(/c) See Hayley v. Racket, 5 M.& 416. See Price v. Hollis, 1 M. & S. 

W. 620. 105; Tyson i;. Paske, 2 Ld. Raym. 

(0 Jones t)." Robinson, 11 M. & 1212; S.C. Salk. 333. That the 

W. 758. sheriff is entitled to poundage on the 

(m) Post, chap. xvi. debt, see Peacock i;, Harris, Salk. 331. 

(n) Nash v. Allen, 1 Dav. & M. But that case was cited without avail 

16; 1 Chitty's Archbold, 7th edit. in Nash v. Alien. 



FEES AND POUNDAGE. 113 



But the 43 Geo. 3, c. 46, s. 5, enacts, that " in every action cHip. v. 
in which the plaintiff or plaintiffs shall be entitled to levy under ^^^^' ^' 



an execution against the goods of any defendant, such plaintiff or •is Geo. 3, 
plaintiffs may also levy the poundage fees and expenses of the 
execution, over and above the sum recovered by the judgment." 
It is observable that this act extends only to executions against 
defendants, and does not enable a defendant to levy poundage, 
&c. on an execution against the plaintiff for the costs of the 
action (0). Nor does it apply to crown process (p). Also that 
it applies to executions against goods, and not to executions 
against the person {q) or land. The words " expenses of the 
execution," do not mean only the costs of the writ (r) ; they 
include such expenses as the sheriff, &c. is put to in keeping 
possession of the goods, selling. Sec. which the plaintiff would 
have to pay to the sheriff if there was no such statute. But 
they do not include expenses dehors the execution, such as the 
costs of an interpleader rule(«). And where a judge's order 
directed execution to issue for debt and costs, sheriff's pound- 
age, officer's fees, " and all other incidental expenses," it was 
held that the sheriff could not levy, nor was the defendant liable 
to pay, as " incidental expenses," the costs of rules to return the 
writ (<). The plaintiff, when he includes in the writ a sum to 
be levied for expenses, must take care to levy only such sum as 
will afterwards be allowed on taxation ; for if he levy more, 
the court will order him to restore the excess with costs (m). • 
It seems the sheriff may, in cases within 43 Geo, 3, c. 46, levy 
for his fees under 1 Vict. c. 55, though there be no indorsement 
to that effect on the writ, and he need not particularize their 
respective amounts in his return {x). 

A question may perhaps arise whether executions on rules of Rule of 
court are within the above statute ; and whether, inasmuch as '^""'^ ' 
1 & 2 Vict. c. 110, s. 18, gives them to some extent the effect 
of judgments, the person to whom the money is payable thereby 

(o) Baker 1;. Lyder, 7 Taunt. 179; (s) Hammond v. Nairn, 1 Dowl. 

Anon. 2 Chit. 353. See Woodgate N. S. 351 ; 9 M. & W. 221, S. C. 

V. Knatchbuli, 2 T. R. 158. (t) Hutchinsoni;. Humbert, 1 Dowl. 

(p) See R, V. Miles, 7 T. R. 367; N. S. 78; 8 M. & W. 638, S.C, 

West, 238. (») Benwell v. Oakley, 2 Taunt. 

(9) Hayley D. Racket, 5 M. & W. 174. 

620. (,r) Curtis v. Mavne, 2 Dowl. N. 

(r) Per Best, C. J., Rumsey v. S. 37. 
Tuffnell, 1 Bing. 256. 



114 EXECUTION AND RETURN OF WRITS. 

CHAP. V. may not be considered as a plaintiff" for the purpose of the sta- 
sEci. V. ^^^^^ ^^2 Geo. 3, c. 46). But the point lias not been decided. 



Poundage and The sheriff" may retain his poundage out of the sum levied, 

expenses, •' in 

how reco- Or he mav maintain an action of debt on the statute for his 

verefl by the . 

sheriff. poundage against the person who issued the writ (?/) ; nor has 

the statute of the 43 Geo. 3, c. 4G, s. 5, taken away the sheriff''s 
right of action against the plaintiff" for his poundage on a Ji. 
fa. (s). So it seems the sheriff" may sue for the expenses allowed 
him by 1 Vict. c. 55 (a). Or in cases within 43 Geo. 3, c. 46, 
s. 5, he may levy for them even although there be no indorse- 
ment to that eff"ect on the writ (6). A question may arise, when 
the parties compromise after the sheriff" has seized and before 
he has sold under a. ji. fa., whether the sheriff", on notice from 
the plaintiff", is bound to withdraw, and trust to his action against 
the plaintiff" for his poundage, or whether he may, notwithstand- 
ing the compromise, proceed to sell enough to cover his pound- 
age ? In favour of his right to sell, the course pursued in 
Alchin V. Wells (c), and the observations of Wightman, J,, in 
Curtis V. Mayne (d), may be referi'ed to. On the other hand, 
it must not be forgotten that 43 Geo. 3, c. 46, s. 5, which alone 
empowers the sheriff" to levy for poundage and expenses, was 
passed in favour of the plaintiff, not the sheriff"; and therefore, 
if the ordinary rule applies, the benefit of it may be waived by 
the plaintiff". A strong case may be put, where the defendant in 
the compromise has settled for the poundage eo nomine; and the 
case of an elegit, where the sheriff" can only deliver the goods 
in execution and not sell, furnishes an argument. The sheriff" 
cannot refuse to execute the writ until his fees are paid (e) ; 

(y) Lister v. Bromley, Sir W. bailiffs, should he brought in the name 

Jones, 307 ; S. C. Cro. Car. 286 ; of the sheriff or of the bailiff. Such 

Tyson v. Paske, 2 Lord Rayra. 1212; actions have been brought in the name 

S. C. Salk. 333. of the bailiff, but the point is not de- 

(z) Rawstorne t). Wilkinson, 4 i\L cided. See Foster u. Blakelock, 3 B. 

& Sel. 256. & Aid. 47. 

(a) The general rule is, that for a (h) Curtis v. Mayne, 2 Dowl. N. 

pecuniaiy duty created by statute, S. 37. 

debt is maintainable. See Com. Dig. (c)5T. R.470. This point passed 
Debt, A. 1; Tilson v. Warwick Gas unnoticed there. 
Light Company, 4 B. & C. 962; ((/) 2 Dowl. N. S. 37. 
Garden?; General Cemetery Company, (e) Hescot's case, 1 Salk. 330; 
5 Bing. N. C. 253. It has been Anon. 1 Salk. 331. See also Hop- 
doubted whether actions for the fees man v. Barber, Stra. 814; White v. 
allowed by the table (ante, 101) to Haugh, ib. 1262. 



FEES AND POUNDAGE. 115 

and it seems a bond(/), or a promise (g), to pay the sheriff his chap, v, 
fees that he will be entitled to for executing a writ, is void. ^^^'^- '^- 

The attorney of the execution plaintiff is not liable to the 
sheriff for the fees due on the execution of a ca. sa. or other 
writ (Ji). 

The taking more fees than is by law allowed is extortion, Extorcion. 
which is punishable at the common law by indictment (i). But 
indictments can only be maintained against the person actually 
guilty of the offence, and when the ofRcer of the sheriff takes 
more than he is entitled to for poundage, the sheriff is liable 
to an action (^•), but not to an indictment for the offence of his 
officer (Z). 

The person from whom the money has been extorted may 
apply summarily to the Court for restitution (m), or bring an 
action for money had and received, or resort to the remedies fur- 
nished by the following statutes, where they are respectively 
applicable. 

By the statute 28 Eliz. c. 4, {ante, 100), sheriffs, &:c. offending 28 Eiiz c.4. 
against that act, are subject to pay treble damages to the party 
aggrieved, and a penalty of 40/., one half to the crown and the 
other half to the party suing for the same. The treble damages 
on this statute are calculated as three times the amount of the 
damages found by the jury (?i); the damages are in general the 
sum overcharged (o). An action cannot be maintained on the 
28th Eliz. for extortion against a sheriff, for taking more fees 
than he is entitled to in executing a levari facias at the suit of 
the crown ; for the sheriff is not entitled to poundage on such a 
writ under that statute{j))- Nor, it would seem, will an action 
lie for taking excessive fees, other than poundage, upon the con- 

if) Raym. 62; Hutt. 52. {k) Woodgate v. Knatchbull, 2 

(^) Bridget. Cage, Cfo.Jac. 103; T. R. 148. 
see Bilke v. Havelock, 3 Camp. 374. (/) Per Gould, J., in Saunderson 

(/i) Maybery v. Mansfield, 16 Law v. Baker, 3 Wils. 316. 
J. Q. B. 102 ; Dew v. Parsons, 2 B. {m) See Phillips v. Viscount Can- 

& Aid. 562, semb. contra. See Bilke terbury, 11 M. & W. 619. 
V. Havelock, 3 Campb. 374. (n") Woodgate v. Knatchbull, 2 T. 

(i) Smith V. Rlall, 2 Rolle's Rep. R. 159 ; Buckle w.Bewes, 6 Dowl.& 

263 ; S. C. Palm. 318 ; " extortio est R. 1 ; 4 B. & C. 154, S. C. 
crimen quando quis colore orficii ex- (o) Woodgate v. Knatchbull, uhi 

torquet quod non est debitum, vel sup. See Buckle v. Bewes, 5 D. & R. 

quod supra debiium, vel ante tempus 495, 3 B. & C. 688, S. C. 
quod est debitum," See 1 Inst. 368 ; (p) Stephens v. Rolhwell, 6 Moore, 

2 Inst. 206; 10 Rep. 102; 2 Salk. 338 ; 3 Bro. & B. 143, S. C. 
680. 

12 



IIG 



EXECUTION AND RETURN OF WRITS. 



CHAP. V. 
SECT. V. 



32 Geo. 2, C. 
28, s. 12. 



1 Vict. c. 55, 
s. 3. 

To prevent 
officers takinf 
fees not 
allowed or 
greater lees 
than are 
allowed. 



and other 
persons frora 
taking any 
fees. 



joint operation of the statute 28 Eliz. c. 4, and 1 Vict. c. 55 (q). 
In order to raise that question, the declaration ought to aver 
that a table of fees has been prepared and sanctioned by 
the judges under 1 Vict. c. 55, s. 2, and specify in respect of 
what items the defendant has taken more than that table allows (r) . 
It seems that, in a declaration for extortion, the declaration ought 
to state the amount actually taken, and that it is not sufficient 
to allege that the sheriff took " £ more than by law is 

allowed («)," 

The statute 32 Geo. 2, c. 28, s. 12, giving a penalty of 50/. 
in certain cases of improper conduct of sheriffs in the execution 
of mesne process, and which has been supposed to extend to 
extortion of greater fees than are allowed by other statutes upon 
the execution of mesne process, will be found in the chapter 
on Bailable Capias {i). 

The third section of 1 Vict. c. 55, enacts, ' that any sheriff, 
' officer or minister acting in the execution of process directed 
' to any sheriff or sheriffs, or engaged or concerned therein, who 

* shall extort, demand, take, accept or receive from any person 
' or persons any fee or fees, gratuity, or reward not allowed as 
' aforesaid, or greater in amount than as allowed as aforesaid, 

* such sheriff, or other his officer or minister, upon complaint 
' thereof made against him to any of the said courts, and on 

* proof being made thereof upon oath, either by the examination 
' of witnesses viva voce, or on affidavits, or on interrogatories, to 
' the satisfaction of the court to which the said complaint shall be 
' made, that such sheriff, officer, or minister, as the case may be, 
' hath offended therein as aforesaid, then and in such case every 
' such sheriff, officer, or minister, as the case may be, shall be 
' adjudged guilty of a contempt of such court, and punished by 
' such court accordingly ; and if any person, not being such 
' officer or minister as aforesaid, shall assume or pretend to act 

* as such, and shall extort, demand, take, accept, or receive any 
' fee or fees, gratuity, or reward under colour or pretext of 
' such office, he shall, on like complaint and proof, be in that 
' respect dealt with by the court in like manner.' 



((/) Usher v. Walters, 4 Q. B. 553 ; 
3 G. & D. 594, S. C. ; Pilkington v. 
Cooke, 16 M. tk W. 617. 

(r) Ibid. 



(s) Ashby V. Harris, 2 M. ^ V/ 
673; see Pilkington v. Cooke, ubi sup. 
(() Post, p. 125. 



FEES AND POUNDAGE. 117 



Sect. 4. ' And be it enacted, that in all cases of summary com- chap. v. 
« plaints as aforesaid the court before which such complaint shall '^^^■'^' '^- 
' be preferred may at its discretion award the costs of or occasioned Court may 
' by such complaint to be paid by either party to the other ; 
' such costs to be taxed by the master of such court : 

* Provided always, that no such complaint shall be entertained Complaint 
* unless made before the last day of term then next following the Tss,' when 
' act whereof complaint ^s made.' '" "" '""''"■ 

The provisions of the 28th Eliz. c. 4, are not repealed by this 
statute (ji). 



Section VI. 
Actions against the Sheriff in general. 

The actions that the sheriff is subject to in discharge of his Actions 
duty in the execution and return of writs may be classed under sher?ffl 
two heads : 1st, Actions against the sheriff by the party suino- 
out the writ ; 2dly, Those at the suit of the person whose per- 
son or goods the sheriff has taken. We have already seen tliat 
civiliter the sheriff is answerable for the acts of his bailiff, but 
not criminaliter ; and therefore for all acts of irregularity, mis- 
feasance, or non-feasance, in executing writs, committed by the 
officer, the sheriff may be sued (a). 

1. As regards the actions to which the sheriff is subject at the At the suit of 
suit of the person suing out the process. If the sheriff make a lufng^ourthe 
false return, he will be liable to an action ; as if he return ''"'" 
nulla bona to a writ of Jieri facias, when he had an opportunity 
of making a levy (6) ; or if he neglects or refuses to execute 
any writ when he has the opportunity and is required so to 
do (c). Thus where a writ of hah.fac. poss. had been delivered 
to the sheriff, but the writ nevertheless was not executed by 
reason of the delay of the sheriff, and the judgment was after- 
wards set aside on payment of costs by the landlord, who was 
let in to defend by a judge's order, the sheriff was held liable 
to an action at the suit of the lessor of the plaintiff, for recovery 
of the expenses he had incurred in trying to have the writ exe- 

(j() Pilkington y. Cooke, 16 IM. & (c) Ikown v. Jarvis, 1 RI. & W. 

W. 617. 704; Kandell v. VVheble, 10 A. & 

(a) See ante, p. 44. E. 719 ; Mason v. Paynler, 1 Q. B. 

(6) See ;ws«, the chapter on fi./u. 974. 



118 EXECUTION AND RETURN OF WRITS. 

CHAP. V. cute(\{d). So also, an action will lie against the sheriff for dis- 
_?^5ZlZiL charging a person arrested on a bailable writ of capias without 
taking sufficient bail, if he have him not at the return of the 
writ(e). 

But an action will not lie for omitting to execute a writ of 
mesne process before the eight days, unless some actual damage 
is alleged and proved (/). The sheriff is liable to an action 
for a neglect of duty in omitting to arrest a debtor on a ca. sa. 
without proof of actual damage ; but if the jury negative actual 
damage, the plaintiff is only entitled to a verdict with nominal 
damages (g-). So in an action against the sheriff for negligence 
in executing a Ji. fa., the plaintiff cannot recover more than 
nominal damages, unless he prove actual damage ; and it was 
doubted whether without such proof even nominal damages could 
be recovered (A). 

If the sheriff discharge a defendant on taking a bail-bond 
on an arrest on mesne process, and return non est inventus, he 
would be liable to an action for a false return (i). But the 
sheriff is not liable to an action at the suit of the plaintiff for 
not returning the writ (k). If a person in the sheriff's custody 
in execution be rescued, or escape out of custody, or be dis- 
charged by the sheriff, even on payment to him of the debt and 
costs, the sheriff is liable to an action for an escape (I). Or if the 
sheriff, on request, refuse to assign to the plaintiff a bail-bond 
taken by him on an arrest on mesne process, the sheriff is liable 
to an action ; but for such a refusal it seems that there is no 
other remedy (m). For money levied by the sheriff on aji. fa. 
an action will lie by the plaintiff against the sheriff (n). It has 
been doubted whether an action will lie against the sheriff at the 
suit of a party issuing an attachment out of the Court of Chan- 
cery for arresting the defendant while privileged, so that the 
plaintiff was obliged to issue a fresh attachment (o). 

(d) Mason v. Paynter, 1 Q. B. (i) See post, chap. 6. 
974. (k) 2 Inst. 452. 

(e) Brunskill v. Robertson, 9 A. & (I) See post, chap, on Ca. sa. 

E. 840. (m) Stamper v. Milbourne, 7 T. R. 

(/) Williams v. Mostyn, 4 M. & 122. And see Mendez u. Bridges, 5 

W. 145; Brown v. Jarvis, supra; Taunt. 325. 

Randle v. Wheble, supra. (n) See post, chapter on Fi. fa. 

(g) Clifton V. Hooper, 6 Q. B. 468. (o) See Lloyd v. Wood, 5 Ad. &. E. 

(^> Bates V. Wingfield, 4 Q. B. 228, ^er Patteson, J. 
580, 'n.; 2 Nev. & M. 831, S. C. 



ACTIONS AGAINST THE SHERIFF IN GENERAL. 119 

2. If the defendant be styled by a wrong name in a writ of chap. v. 
mesne process, either against his goods or his person, the sheriff 



is liable to an action of trespass for executing such writ (m), ^' '•'^ '"'' °f 

^ ° \ >" the person 

unless the name be idem sonans (n), or unless the defendant be whose goods, 

1 11 1 1 \ &c. aretaken. 

known by one name as well as the other (o), or has assumed 
in the particular instance the name by which he is sued(p). 
And where the defendant is styled by a wrong name in a writ 
of mesne process, in a plea of justification it must be alleged 
that the defendant was known by one name as well as the 
other (<jr). And the 3 & 4 Will. 4, c. 42, s. 11, which takes 
away the right of a defendant to plead in abatement for a mis- 
nomer, does not in any way affect the law in this respect (r). 

Although the sheriff will be justified in arresting a defend- 
ant wrongly named in the writ where he is as well known 
by the wrong name, still he is not bound to do so ; and even 
after actual arrest under such circumstances, he is not, it seems, 
liable to all the consequences which attach to an arrest under 
ordinary circumstances, unless he has 7wtice that the defendant 
was as well known by one name as the other (s). 

If on a writ against A. the sheriff arrest B,, although B. says 
that he is A., yet it has been said that the sheriff is liable to an 
action for false imprisonment (l). But it may be doubted, not- 
withstanding such dicta, whether any action would lie against a 
sheriff for a mistake induced by the misrepresentation of the 
complainant (u). 

For executing a writ of final process against a defendant 
wrongly named in the writ no action will lie against the sheriff, 
provided that the person upon whose body or goods the writ is 

(m) Colej).Hindson,6T. R.234; (p) Price v. Harwood, 3 Camp. 

Shadgett v. Clipson, 8 East, 328 ; 108 ; Morgan v. Bridges, 1 Bar. & 

Price V. Harwood, 3 Camp. 108 ; Aid. 647 ; Crawford v. Satchwell, 2 

Scandover o. VV'arne, 2 Camp. 270. Stra. 1218. 

See Thurbane e< (i/. Hard. 323; Rex (<j") See the cases cited supra ; also 

V. Sheriffof Surrey. 1 Marsh. 75; Rex Fisher i-. Magnay, 1 Dowl. & L. 45, 

V. Sheriff of -Middlesex, 2 Chit. Rep. per Tindal, C. J. 

357. It is otherwise in writs of exe- (r) Finch i'. Cocken, 3 Dowl. 678 ; 

cution, if the judgment were against 2 C. M. 6c R. 196, S. C. 

thedefendantby awrongname; Craw- (s) Brunskiil v. Robertson, 9 A.& 

ford V. Satchwell, Sira. 1218. E. 840; Morgan v. Bridges, 1 B. & 

(n) See Abithol v. Beniditto, 2 Aid. 647. 

Taunt. 401 . (t) Moor, 457 ; Hard. 323. 

(«') See the cases in the two last (u) See per Lord Ellenborough, 

notes; also Fisher v. Magnay, 1 C. J.. 1 B.& Aid. 650; Smiths Lead- 

Dowl. & Low. 40. ing Cases, 44, n. ; ante, p. 76. 



120 EXECUTION AND RETURN OF WRITS. 

CHAP. V. executed be in fact the person against whom the judgment was 
^^^^' ^^' entered up and the writ issued ; and it is quite immaterial 
whether he be generally known as well by one name as another. 
Indeed the sheriff would be bound to execute such a writ (x). 

If the ofllccr on a writ against A. take the goods of B., the" 
sheriff is liable to an action of trespass or trover for the act of 
his officer (?/). Even if there are two persons of the same name 
and address, and a writ issues against one of them, and the sheriff 
through inadvertence or mistake executes the writ against the 
wrong person, he is liable to an action. For instance, where a 
father and son both bore the name of "Joseph Jarmain/' and 
judgment was recovered and a Ji. fa. issued against the son by 
that name, not adding " the younger," the sheriff was held 
liable in trespass for levying on the goods of the father (z). 
In such cases, if the goods have been sold and the price of them 
received by the sheriff, the owner may waive the tort and bring 
an action for money had and received against the sheriff to 
recover the proceeds (a) ; but in such an action the plaintiflF 
will be entitled to the amount only which has been actually 
realized by the sale ; whereas in an action ex delicto he might 
recover the value of the goods seized without reference to the 
price for which they were sold, and also compensation for the 
inconvenience, &c. occasioned by the seizure (6). 

Where the sheriff under di.fi. fa. seizes goods in the possession 
of the defendant, to which the defendant has but a defeasible 
title, and such title is afterwards defeated by events having a 
retrospective effect, as frequently happens in cases of bank- 
ruptcy, the sheriff generally becomes liable to an action of 
trover (c), but not of trespass, because he cannot be made a 
trespasser by relation (d). 

(x) Reeves v. Slater, 7 B. & C. 241. 

486 ; Fisher v. Magnay, 1 Dowl. 6c (6) Glasspoole v. Voung, 9 B. & 

L. 40; 6 Man. & G. 827, S. C; C. 696. See also Vaughan y. Wil- 

ante, p. 70. kins, 1 B. 6c Ad. 370. Qua:re, whe- 

(y) Ackworth v, Kernpe, Dougl. ther such special damage could be 

40. See also Oughton ti.Seppings, 1 recovered in trover; Brevi'er v. Dew, 

B. & Ad. 241 ; Ghsspoole v. Young, 11 M. & W. 625. 

9 B.& 0.696. (r) Cooper v. Chitty, 1 Burr. 20; 

(s) Jarmain v. Hooper, 1 Dowl. & Smith v. Miles, 1 T. JR. 475; Balme 

L. 769 ; 6 Man. &c G. 827. S. C. v. Hutton, 9 Bing. 471 ; Groves v. 

(a) Felthani v. Terry, cit. Cowp. Cowham, 10 Bing. 5; Garland v. 

419. See also Notley v. Buck, 8 B. Carlisle, 4 Bing. N. C. 7 ; W hitmore 

& C. 160 ; 2 Man. 6c R. 68, S.C. ; v. Greene, 12 M. & W. 184. 

Oughton II. Seppings, 1 B. 6c Adol. (d) See cases in last note. 



ACTIONS AGAINST THE SHERIFF IN GENERAL. 121 

Thus, if a sheriff, having seized goods under zji. fa. issued chap. v. 
on a judgment founded on a warrant of attorney, sells after the st.cT. vr.^ 
issuing of the fiat, he will be liable to an action of trover at the 
suit of the assignees, for such an execution is defeated, and the 
■property in the goods transferred to the assignees, after issuing 
of the fiat before sale (e) ; or if the sheriff has received the 
proceeds, he may be sued for money had and received (y). 
"Where there is any abuse in the execution of process, trespass 
will lie against the sheriff and his officer ; as if the officer arrests 
a person on a writ ofJi.fa.{g), or take the defendant out of the 
sheriff's bailiwick (h) ; or after the return day of the writ(i); 
or if he break open an outer door (j), or execute a writ of exe- 
cution after notice of the allowance of a writ of error (A") ; or if 
he execute a writ against the person or goods of a defendant, 
after a direction from the plaintiff not to do so, or after notice 
from the plaintiff that he has released the debt (l) ; or if, after 
seizure and sale of chattels real under af.fa., he remain in pos- 
session for an unreasonable time for the further execution of the 
writ (m) ; or if he be guilty of any other excess («), even though 
such excess or abuse be committed by the officer contrary to 
the express orders given him by the under-sheriff (o), or contrary 
to the express terms of the writ (^j). 

If the sheriff, having lawfully arrested a party, detains him Unlawful ae- 

_ ,,. i;/'ii-i z>i tainer after 

after such detainer ceases to be lanjul and notice thereof, he rightful ar- 
will be liable in trespass ; and if, in an action for false impri- 
sonment under such circumstances, the sheriff justify under 
the process, the plaintiff may new assign the unlawful de- 
tainer {q). But it seems that a sheriff cannot be sued in any 
form of action for detaining a prisoner, who having been un- 

(e) Cheston v. Gibbs, 1 Dowl. & L. W. 239. 

420; S. C. 12 M. & VV. HI. (n) Ralcliffe i\ Burton, 1 Bos. & 

(/) Notley V. Buck, 8 B. & C. Pul. 223. 

160. («>) Scarfe v. Hallifax. 7 M. & W. 

(g) Smart v. Hutton, 8 Ad. & E. 288 ; also per Patteson, J. in Balme 

568, n. V. HuUon, 9 Bing. 474. 

{h) See Holliet v. Bessey, Sir T. (;>) Smart v. HuUon, 8 Ad. & E. 

Jones, 214. 568, n. See further as to liability for 

(i) 2 Esp. Rep. 585. acts of bailiffs, ante, 44. 

(_;■) Lee v. Gansei, Cowp. 1. {q) Magnay v. Burt, 5 Q.B. 381 ; 

\k) Belshaw v. Marshall, 4 B. & 1 Dav. & M. 652, Exchequer Cham- 
Ad. 336. ber in error, reversing the judgment 

(l) Barker v. St. Quinlin, 12 M. of the Queen's Bench. See also Smith 

& VV. 441. V. Eggintoa, 7 Ad. & Ell. 167. 

(m) Piayfairi). Musgrove, 13 M.& 



bj ibe sheriff. 



122 EXECUTION AND RETURN OF WRITS. 

CHAP. V. lawfully in custody, has become entitled to his discharge, unless 
SECT. VI. j.|^g sheriff has notice of the facts which entitle him to his dis- 
charge, and a request to be discharged is not tantamount to 
such notice (r). 
Not entitled The sheriff is not in any case entitled to notice of action for 

to notice of i • i i i • • • i r> i / \ 

action. any thmg done by him m executmg the process ot the court (s). 

Where an act of parliament gave a power to the sheriff to levy 
debts due in respect of taxes, when recorded in the Exchequer, 
it was held that the sheriff was not such a collector as is entitled 
to a month's notice of action, under the 43 Geo. 3, c. 99, 
s. 33 (t). 

Justification It is not neccssary for the sheriff to show the judgment in 
justifying under a writ of execution ; it is enough to show the 
writ only (u). The sheriff is justified in executing aji.fa. issued 
after the defendant has been discharged by the Insolvent Debtors' 
Court, and no action will lie against him for so doing (v). But 
where the sheriff or his officer justifies under any writ or war- 
rant, it is necessary for him to set it forth in his plea ; for it is 
not sufficient to allege generally that he committed the act com- 
plained of by virtue of a certain writ or warrant to him di- 
rected (x). The defendant should also show that he has sub- 
stantially pursued his authority (y), and that the acts complained 
of were all done under the writ ; for it is not sufficient to jus- 
tify the sheriff, that a writ has been delivered to him, under 
which he might, had he chosen, have committed the acts, unless 
in fact he did commit them under such writ (^) ; and therefore, 
where in trespass for breaking and entering the plaintiff's 
house, the defendants (the sheriff and his bailiff) justified under 
a Ji. fa. and warrant of execution against the goods of B., 
alleging that the warrant was delivered to one of the defend- 
ants, a bailiff, to be executed; that goods of B. were in the 
house, and that by virtue of the writ and warrant, defendants, 
being sheriff and bailiff, broke and entered, &c. ; to which the 
plaintiff, admitting the issuing and delivery of the writ to 

(r) Smith v. Egginton, 7 Ad. & Lord Denman, C. J. 

Ell. 167. (v) Whitworth t;. Clifton, 1 M. & 

(s) See per Park, J., 1 Bing. 373. Rob. 531. 

(0 Copland v. Powell, I Bing. (x) 1 Saund.298, n. (1). 

369 ; S. C. 8 Moore, 400. (y) Id. 

(u) Cotes V. Michell, 3 Lev. 20 ; (=) See Lucas D.Nockells. 10 Bing. 

Moravia v. Sloper. Willes, 30, 34; 157 ; Carnaby i;. Welby, 8 Ad. Sc E. 

Andrews v. Marris, 1 Q. B. 17, per 872. 



ACTIONS AGAINST THE SHERIFF IN GENERAL. 123 



SECT. VI. 



the sheriff, and the making and delivery of the warrant to the chap 
bailiff, replied that the defendants of their own wrong, and . 
without the residue of the cause in their plea alleged, committed 
ike trespasses : it was held, that, in order to justify the defend- 
ants, it should have been shown by evidence that the entry and 
seizure were under the writ and warrant — that upon the record 
no other facts were admitted than those admitted in terms by 
the replication, and that the plaintiff was at liberty to show that 
the seizure was a mere colourable one, and not under the writ (a). 
Yet if the officer has a legal warrant at the time of seizing the 
defendant's goods, although he declared he entered for a differ- 
ent purpose, this is a good justification for the officer (6). We 
have seen, that if the court out of which the writ issues has 
jurisdiction over the cause, although the proceedings whereon 
the writ is grounded be erroneous, or even the writ itself be 
irregular, yet the writ is sufficient for the sheriff's justifi- 
cation (c) ; even if the writ be set aside for irregularity, after it 
is executed by the sheriff, yet it is sufficient to justify his 
acts (d). But the sheriff would not be justified in executing a 
writ which, upon the face of it, appeared to be a nullity and un- 
authorized by law(e) ; nor in executing a writ, after notice that 
it has been superseded, as if he executes aji.fa. after notice of 
the allowance of a writ of error (/) ; nor in executing it after 
notice from the plaintiff not to execute it without further 
order (g-). In justifying under a writ of mesne process, it is 
necessary for the sheriff to show the writ returned (h) ; but 
it is not necessary in a plea of justification by a sheriff's 
bailiff (?) ; and the sheriff may justify acting under a ca. sa. 
ov f. fa. without having returned them(j). It is always ad- 

(a) Carnaby v. Welby, supra. (f) Belshaw v. Marshall, 4 B, & 

(ft) Crowther v. Ramsbottom, 7 Ad. 336. 

T. R. 654. Per Holt, C. J. in Gren- {g) Hunt v. Hooper, 12 M. & W. 

viile t). The College of Physicians, 12 664. 

Mod, 387. See Baillie v. Kell, 4 (/;) Britton «. Cole, 1 Salk. 509; 

N.C. 638. Freeman v. Blewitt, id. ibid.; S. C. 

(c) Ante, p. 67 ; Andrews v. Mar- 12 Mod. 394 ; 1 Ld. Raym. 632. 

ris, 1 Q. B. 3; CarraU v. Morley, ib. (i) Girling's case, Cro. Car. 446; 

18. S. C. Sir W. Jones, 378. And see 

(d ) Turner v. Felgate, 2 Sid. 125 ; cases in last note, and Cro. Eliz. 181. 

S. C. 1 Lev. 95. See also In the (j) Rowland i'. Veale, Cowp. 18 ; 

matter of the Glatton Land Tax, 4 Cheasley v. Barnes, 10 East, 82; 

M. & W. 570, per Parke, B. Mountney r. Andrews, Cro. Eliz. 237 ; 

(e) See Carratt v. Rlorley, 1 Q. B. Hoe's case, 5 Rep. 90. 
18. 



124 



EXECUTION AND RETURN OF WRITS, 



CHAP. V. 

SECT. VI. 



Proof of judg- 
ment, wben 
necessary in 
trover. 



When the ac- 
tion lies 
asjainsl the 
old, and when 
against the 
new sheriff. 



visable, where an action of trespass is brought against the 
sheriff or his officer, jointly with the plaintiff or his attorney, 
for the sheriff to justify separately; for if the justification 
be joint, and it be bad for the plaintiff, it will be bad for the 
sheriff or his officer also ; and there are many cases in which 
the sheriff is justified, but not the party or his attorney (A'). 
For instance, if the officer and party justify under a ca. sa. 
together, they are bound to show a regular judgment ; whereas 
it is a sufficient justification for the sheriff to show the writ 
without the judgment (/). Where a stranger brings an action 
of trover against the sheriff, or against a person claiming under 
a bill of sale of goods from the sheriff, for goods seized and 
sold under aji.fa., it is said to be necessary to prove the judg- 
ment as well as the writ {m) ; but it is not necessary to prove 
the judgment where the action is by the defendant himself (w), 
or by his assignees if he has become a bankrupt, for they stand 
precisely in the same situation as the defendant would do (o). 

As between the old and new sheriff, we have seen that the new 
sheriff is not chargeable with such things which are wholly exe- 
cuted before they are delivered over to him by the old she- 
riff (p); for if the old sheriff take a man in execution, and after- 
wards a new sheriff be made, and before the old sheriff deliver 
his prisoner to the new sheriff the prisoner escape, the old 
sheriff only is chargeable for the escape ; for the new sheriff 
shall not be chargeable for any other prisoners than what are 
legally delivered over to him {q). 

The law relative to actions against the sheriff, in respect of 
the execution of process, will be found more particularly noticed 
in the chapters relating to each process. 



(k) Phillips V. Biron, Stra. 509 ; 
Smith V. Bouchier, Stra. 993 ; Mid- 
dleton V, Price, Stra. 1184; Andrews 
D. Marris, 1 Q. B. 17 ; Samuel v. 
Duke, 9 M.& W. 622. 

(/) See cases in last note ; Cotes i;. 
Michell, 3 Lev. 20. 

(m) Martin v. Podger, 5 Burr. 
2631 ; S. C. 2 Bla. Rep. 701 ; Lake 
i;. Billers, 1 Ld. Raym. 733. 



(n) Lake v. Billers, 1 Ld. Raym, 
733 ; Doe v. Murless, 6 M. & Sel. 110. 

(o) Glasier v. Eve, 1 Bing. 209 ; 
S. C. 8 Moore, 46. 

(p) Westby v. Skinner, Cro. Eliz. 
365; S.C.3 Rep. 71. 

{q) See judgment of Lord Ellen- 
borough, 4 East, 606 ; Thomas v. 
Newnam, 2 Dowl. N. S. 33. See 
ante, p. 21, et seq. 



( 125 ) 



CHAPTER VI. 

OF THE sheriff's DUTY ON A BAILABLE CAPIAS («). 

Sect. I. — Of the Arrest \ when, where, how made. — Detainer. — 
Sheriff's Fees on an Arrest. — Privilege from Arrest, 
when to be allowed by the Sheriff. — Peers, Ambassa- 
dors, Attornies, Witnesses, <^c., Bankrupts, Seamen 
and Soldiers. 
II. — Sheriff's Duty after the Arrest. — How the Defendant 
should be treated after the Arrest, — Deposit in lieu 
of Bail. — The Bail Bond ; Sheriff obliged to dis- 
charge Defendant on giving a Bail-Bond ; In what 
Form, to whom, for what amount to be made ; — 
IVhen the Sheriff must discharge the Defendant. 

III. — Proceedings on the Bail-Bond. — Assignment of the 
Bail-Bond ; where, by whom, and how made. — Ac- 
tion on the Bail-bond ; in what Court to be brought ; 
when Proceedings may be stayed on the Bail-Bond. 

IV. — Proceedings against the Sheriff. — Rule to return the 
Writ. — Return. — Rule to bring in the Body ; Object 
thereof, at what time obtained, how complied with. — 
Attachment for not bringing in the Body, hoiv ob- 
tained, when set aside for irregularity ; regular, on 
what Terms set aside ; to what Extent the Sheriff is 
liable on the Attachment ; his Remedy over. 
V. — Actions for Escape, ^c. — In what Cases maintainable. 
— The Declaration. — Evidence. — Damages. 



SECTION I. 

Bailable Capias. — Arrest ; when and how made. 
A WARRANT must be made out to a bailiff as soon as the writ 
comes to the under-sheriff's office, if he knows where the de- 

(a) This writ, since 1 & 2 Vict.c. under the writ of summons. The ra- 
il 0, can no longer properly be called puis is only a collateral process to en- 
a capias ad respondendum. All the force security in case the debtor is 
proceedings ad respondendum are had about to quit England. 



126 sheriff's duty on a bailablk capias. 

CHAP. VI. fenclant lives (b) ; on which point he is, it seems, bound to make 
^^^"'^^ '• reasonable inquiry, as the plaintiff is not bound to identify and 
point out the defendant as a condition precedent to the sheriff's 
being bound to arrest him (c). The form of the warrant, and 
the indorsements requisite thereon, and when it must be jointly 
executed, have been already considered (d). The name of the 
attorney suing out the writ (e), and the day and year indorsed on 
the writ (/), must be indorsed on the warrant. But an omis- 
sion in this respect only subjects the sheriff to a penalty, and 
does not vitiate the warrant (g). 
In cases of If the defendant be sued by a wrong name, the sheriff would 

be a trespasser for arresting the defendant on mesne process, 
unless the defendant were known as well by the name mentioned 
in the writ as by his real name (h). And even although the 
defendant should be known by both names, or had used the 
name in the writ in the particular transaction, the sheriff, al- 
though he would he justified in making the arrest if he thought 
fit so to do, would not, at least without notice of the circum- 
stances, be liable to an action for not executing the writ, or for 
an escape (i). 
At what time If the bailiff make the arrest before the writ is delivered to 
onghMo^be the sheriff, or before he has received his warrant, he will be 
'"*''^' subject to an action for false imprisonment (A:). But after the 

writ is delivered to the sheriff, and after the warrant is delivered 
to the ofRcer, the arrest may be made, according to the memo- 
randum subscribed (/) to it (according to 1 & 2 Vict. c. 110, 
sched.), within one calendar month from the date thereof, in- 
cluding the day of such date, and not afterwards. It may be 
made at any hour of the day or night (m). An arrest on such 
process upon a Sunday, we have seen, is illegal by the statute 
29 Car. 2, c. 7, s. 6 (n). 

It has also been noticed that the sheriff must execute the 

(b) See form, Appendix. A. & E. 840. 

c) Dyke «. Duke, 4Bing.N.C. 197. (k) 1 Saund. 298 ; Hall i;. Roche, 

(d) See ante, p. 71, cfse?. 8 T. R. 187; Astley v. Goodjer, 2 

(e) 2 Geo. 2, c. 23, s. 22 ; 12 Geo. Dowl, 619. 

2, c. 13, s. 4 ; see 2 W. 4. c. 39, s. 12. (0 See ante, p. 78. 

(/) 6Geo. 1,0.21, s. 54 ; seeajUe, (m) Macally's case, 9 Co. 66; 

p. 71. Anon. 1 Chit. 357. 

(g) Ante, 71; 1 Chit. Archb. 525. (n) ^wfe, p. 79. Wilson d. Tucker, 

(h) Ante, pp. 70 and 120. 1 Salk. 78 ; Loveridge v. Plaistow, 2 

(i) Morgan v. Bridges, 1 Bar. & Hen. Blac. 29; Taylor v. Phillips, 

Aid. 647; Brunskill d. Robertson, 9 3 East, 155. It is said in the case in 



ARREST, WHEN AND WHERE MADE. ]27 

process within a reasonable time, and if he neglects to do so will chap. vi. 
subject himself to an action for recovery of any damage sustained ^^^^' '* 
by reason of his neglect (o). In an action for default made 
before the writ has become returnable, special damage must be 
alleged and proved (p). Mere delay in the execution of the writ 
is no ground for an attachment against the sheriff (^). 

The sheriff or his officer may arrest the defendant at any Where made, 
place within his county ; but the sheriffs of London, on a writ 
directed to them, cannot make an arrest in Middlesex, or vice 
versd. If the officer arrest a person out of the county to which 
a writ is directed, he will be liable to an action for false impri- 
sonment, and the Court (on a speedy application, but not after 
considerable delay) (r) will discharge the defendant out of cus- 
tody, or order a bail-bond, if taken on such arrest, to be can- 
celled {s) ; but the Court, to interfere summarily in such case, 
will require an affidavit that there is no dispute as to the boun- 
dary (<). An arrest cannot be legally made in the king's pre- 
sence, nor in any of his royal palaces (m) ; nor in the Tower of 
London {x), nor in a Court of justice whilst the justices are sit- 
ting (y) ; but it seems the Court would not summarily discharge 
a defendant out of custody if so arrested {z), though it would 
be punishable as a contempt. If the writ do not contain a non 
omittas clause, we have seen that the sheriff should issue his 
mandate to the bailiff of a liberty to arrest the defendant, if he 
reside within a liberty (a). And although a sheriff is liable to 
an action at the suit of the owner of the franchise for executing 
a writ without a non omittas clause within a liberty (h), yet an 
arrest there made by the sheriff is good ; he is not therefore 
liable to an action of trespass ; nor will the Courts discharge a 
defendant so arrested out of custody, although such arrest be 

Salk. that the patty arrested on a Sun- (0 Id, ibid. Storer v. Rayson, 4 

day may have an action for false im- Dowl. & Ry. 739 ; S. C. 3 Bar. & 

prisonment. Cres. 158; D.Walters, 1 Chit. 

(o) Ante, 18; Randell j;. Wheble, Rep. 14. 15, n. (rf) ; ante, 74. 

10 Ad. & El. 719. . (w) Winter v. Miles, 10 East, 578 ; 

(p) lb. 1 Camp. 475; ante, 75. 

(q) Rex^;. Sheriff of Kent, 2 M. & (x) Batsoni;. lVrLean,2Chit.Rep 

W. 316. 51; ante, 74. 

(r) Greenshield v. Pritchard, 8 M. (t/) Ante, 75. 

&W. 148; Fownes j;. Stokes, 4 Dowl. (z) S pinks I'.Spinks, 7 Taunt. 311. 

125. (a) 5 Geo. 2, c. 27, s. 3. 

(s) Hammond v. Taylor, 3 Bar. & (6) See Carrett x'. Smallpage, 9 

Aid. 408. East, 330. 



an outer door. 



128 SHERIFl"'s DUTY ON A BAILABLE CAPIAS. 

CHAP. VI. made within the verge of the palace (c). So, on the other hand, 
^^^'^' ^' if the slierifFenter a franchise without a non omitlas, and arrest a 
defendant, he will be liable to an action for allowing the de- 
fendant to escape out of his custody (f/). It is no objection to 
an arrest that it was made in a gaol, the defendant beina there 
for his own purposes (e). 
How made— The officer cannot legally break open the outer door or win- 
b'reak"open ^ow of the housc, either of the defendant or of a stranger, to make 
an arrest (/); but having once gained peaceable admission to the 
house, the officer may break open an inner door, even if it be the 
door of a lodger (g). It has indeed been laid down, that although 
the sheriff cannot break open the outer door of the house of the 
defendant to arrest him, yet he may break open the outer door 
of the house of a stranger for that purpose (A). This, however, 
it is submitted, is not correct ; in neither case can he break 
open the outer door, excepting when he has already arrested 
the defendant, who escapes ; then, on fresh pursuit, the sheriff 
may break open the outer door of any house to retake the de- 
fendant (i). There is also this diversity between the house of the 
defendant and a stranger ; the house of the former the plaintiff 
is justified in entering, without forcing the door, to seek for the 
defendant, even if he should happen not to be there (k) ; but the 
sheriff is only justified in entering the house of a stranger if the 
defendant be actually therein; for it is no justification if the de- 
fendant be not there, even if he has resided there immediately 
before the entry, and the officer had probable cause to suppose 
that the defendant was there at the time of the entry (/). 
w^hat In making the arrest, the sheriff should actually seize or 

touch the defendant's body (m) ; a touch, however slight, will 
constitute an arrest (?«). Thus where the sheriff's officer went 

(c) Spinkst). Spinks, 7 Taunt. 311. Hertford Spring Assizes, 1824. 

{d) Piggott V. Wilkes, 3 Bar. & (k) Ratcliffe v. Burton, 3 Bos. & 

Aid. 502. Pul.223 ; and see Hutchinson v. Birch, 

(e) Lovet v. Hill, 4 Dowl. 579. 4 Taunt. 619. 

(/) Ante, 75; see Doe i;. Trye, 5 (/) Johnson u. Leigh, 6 Taunt. 246; 

Bing. N. C. 573, where the officer Cooke u. Birch, 5 Taunt. 765 ; see also 

unjustifiably ihrust his hand through 4 Taunt. 619; Morrish i;. Murrey, 13 

some paper which supplied the place M. & W. 52. 

of a broken pane, and took out a key {m) Genner i'. Sparkes, 1 Salk. 79; 

with which to open the outer door. S. C. 6 Mod. 173. 

{g) Lee V. Gansell, Cowp. 1 ; and (n) W. Fish's case, cited 2 Roll. 

see a/ite, 75. Rep. 138; Palmer, 53; NichoU v. 

(h) Foster, 319. Darley, 2 Y. & J. 399. 

(i; Per Best, C. J., Rex v. Conolly, 



amounls (o an 
arrest 



ARREST, WHEN AND HOW MADE. 129 

to the defendant's house to arrest him on a ca. sa., and read the chap. vi. 

warrant over to him, whereupon the defendant rushed out ' 

against the officer, who seized him round the waist, but was 
unable to hold him, it was held that this amounted to an 
arrest (o). Mere words, as " I arrest you," will not, however, 
of themselves constitute an arrest {p). So where the officer, 
without producing the warrant to the defendant, or threatening 
to arrest him, sent a message asking him to fix a time and call 
and give bail, and the defendant accordingly fixed a time, called, 
and gave bail; such proceeding was held no arrest (^). And 
where the officer called with the warrant on the defendant's 
attorney, and required bail to the sheriff, which was afterwards 
given, it was held no arrest (r). But if the officer, being in a 
position to arrest the defendant, uses such words as " I arrest 
you," and the defendant acquiesces, and goes with the officer, it 
will be a good arrest (*). So it will in general be an arrest, if 
the defendant does any act under the immediate compulsion of 
the process, though the officer does not actually touch him. It 
was so held, where the defendant was offered the alternative of 
being arrested and giving bail, or giving up property in his pos- 
session, and he chose to give up the property (<). And if a 
bailiff comes into a room and tells the defendant he arrests him, 
and locks the door, that is an arrest, for the defendant is then 
in custody of the officer (ii). 

In order to constitute an arrest under such circumstances, it 
seems the warrant ought to be produced, or at least the defend- 
ant made aware that the officer has it, and is in a position actu- 
ally to arrest him in case of resistance (x). It is not necessary 
that the officer to whom the warrant is directed should be the 
hand that arrests, nor that he should be in the presence of the 
person arrested, nor actually in sight, nor is any exact distance 
prescribed ; it is sufficient if he be near, and acting in the 
arrest (?/). 

(o) Nichollt;.Darley,2Y.&J.399. (t) Grainger v. Hill, 4 N. C. 212. 

(p) Russen v. Lucas, 1 Car. & P. (ti) Williams v. Jones, Rep. temp. 

153; see also 1 Salk. 79; 6 Mod. Hard. 301. See also Arrowsmith v. 

173. Le Mesurier, 2 New Rep. 211, 212, 

(?) Berry v. Adamson, 6 B. & C. and qumre. 

528. (x) Robins v. Hender, 3 Dowl. 542, 

(r) James v. Askew, 8 A. & E. 351 . Williams, J. See also Barratt v. Price, 

(s) Homer v. Batiyn and others, 9Bing. 566; 1 Dowl. 725 ; 2 M. & 

Bull. N. P. 62, Per Abbott, C.J. ,1 ScoU, 339, S. C. 

C. & P. 153. (3/) Blatch v. Archer, Cowp. 63. 

K 



130 sheriff's duty on a bailable capias. 

CHAP. VI. If, whilst the defendant is in the legal custody of the sheriff, 
SECT. I. gi^y other writ he delivered to him, or at the under-sheriff's or 



Detainer. deputy's office, at the suit of the same or of any other plaintiff, 
the defendant is, by virtue of such delivery, in custody as well 
under such otiier writ as the writ upon which he is arrested (2). 
So also, if a defendant be legally arrested by the sheriff in one 
action, such arrest will operate as an arrest in all actions in 
which the sheriff holds writs against him at the time (a), and 
the sheriff would in such case be justified in detaining the de- 
fendant upon such other writs, even though the defendant sub- 
sequently obtained an order for his discharge from custody in 
the action upon which he was arrested (6). And therefore if the 
defendant should be ordered to be discharged in the action m 
which he is arrested, the oflficer should always search the sheriff's 
office, to see if there be any other process lodged against the 
defendant, before he discharges him. But if the first arrest be 
void as made without any process(c), or after it is returnable (d), 
or if it be made under process which is afterwards set aside for 
irregularity (e), or if it be made by means of any trickery of 
the plaintiff or his attorney or agent (/), the defendant cannot 
be detained by subsequent process, at suit of the same plaintiff. 
And where an arrest is effected by a wrongful act of the sheriff, 
or of another person, afterwards adopted by the sheriff, such arrest 
will not operate as an arrest, even upon valid writs previously 
lodged; nor, whilst the defendant is in custody upon such illegal 

See Cuckson v. Winter, 2 Man. & R. See also Watson v. Carroll, 4 M. & 

315, n.; Barratt r. Price, uhi sup. W.592; Barclay y. Faber, 2 B. & A. 

Fownes t>. Stokes, 4 Dowl. 125; 1 743; S. C. 1 Chit. Rep. 579. And 

Chit. Arch. 530. see note to 1 Chit. 579, 580 ; Davis 

(s) Frost's case, 5 Rep. 89; W^right v. Chippendale, 2 Bos. 6l Pul. 282 ; 

V. Stanford. 1 Dowl. N.S. 272. It is Howson v. Walker, 2 Bla. Rep. 823. 

said that if a person be in the custody White v. Gompertz, 5 Bar. 6c Aid. 

of the sheriffof Northumberland in that 905. 

county, and another writ against the (c) Loveridge v. Plaistow, 2 Hen. 

same person be delivered personally Bla. 29. 

to the sheriff in London, the prisoner (d) Barlow v. Hall, 2 Anstr. 461 ; 

is thereby immediately in custody in Birch v. Podger, t N. R. 135. 

that suit; Salk. 274. Sed quo-re. (e) Hall i). Hawkins, 4 M. & W. 

(a) Barratt i>. Price, 9 Bing. 570, 591 ; 7 Dowl. 200, S. C. 

Tindal, C. J.; Collins i'. Yewens, 10 ( / ) Barratt v. Price, 9 Bing. 566; 

A. & E. 570; Ford i'. Leche, 6 A. & 1 Dowl. 725, S. C See Jacobs v. 

E. 707, Patteson, J.; Barrack u. New- Jacobs, 3 Dowl. 677; Goodwin v. 

ton, 1 Q. B. 525. ' London, 1 A. & E. 378 ; Mackie v. 

(b) Ex parte Coggs, 6 Dowl, 461 ; W^arren, 2 Moo. & P. 279 ; 5 Bing. 
Barrack v. Newton, 1 Q. B. 525. 176, S.C. 



ARREST DETAINER. 131 



SECT. I. 



arrest, can he be detained upon valid writs subsequently lodged (^), chap 
unless upon a fresh arrest. And such fresh arrest cannot, it 
seems, be made whilst he is in or returning from the illegal cus- 
tody (k) ; certainly not before the rule for his discharge has 
been served on the person in whose custody he is(i). But 
where an authorized person, even a bailiff, without the sanction 
of or collusion with the sheriff or any authorized person, arrests 
the defendant without a warrant, either he or any other bailiff, 
who obtains a legal warrant, may arrest pending such illegal 
custody (A"). To entitle a prisoner to his discharge under such 
circumstances, the first wrongful arrest must have been either 
the act of or ratified by the plaintiff or the sheriff. Where 
several processes are lodged, and one is irregular, the question 
under which the defendant was first arrested is not concluded 
by the marshal's return (/). 

If the defendant be privileged from arrest at the time of the 
caption, he cannot be detained at the suit of the same or any 
other plaintiff; for if he could, his privilege would be illusory (m). 
The order for discharge in such a case should be headed in all 
the causes under which the prisoner is detained, as he is only 
entitled to be discharged from those mentioned therein (??). 

It is only, however, in cases where the first arrest is void or 
illegal by reason of privilege or of the wrongful act of the 
sheriff, that third parties other than and not connected with 
him, under whose process the first arrest took place, can be 
affected by the impropriety of the first arrest. If the defendant 
has been arrested upon irregular process, which is afterwards set 
aside, he is not entitled to be discharged from the process of 
another plaintiff, unless there be some collusion (o). 

(g) Barratt «. Price, 9 Bing. 566 ; (/) Wright v. Stanford, 1 Dowl. 

Collins V. Yewens, 10 A. & E. 570 ; N. S. 272. 

Humphrey v. Mitchell, 2 Bing. N. C. (m) Spence v. Stuart, 3 East, 89. 

619 ; Pearson v. Yewens, 5 Bing. N. (n) Watson v. Carroll, 4 W. & W. 

C.489. 592. 

(/!) R. M. 15 Car. 2, s. 2. And (o) Ex parte Cogg, 6 Dowl. 461 

see Farmer r. Jenkinson, Cook, 34; Barrack v. Newton, 1 Q. B. 525 

Webb V. Dorwell, Barnes, 400; 1 Barclay v. Faber, 2 B. & Aid. 743 

Chit. Arch. 479. S. C. I Chit. Rep. 579. And see note 

(i) Pearson v. Yewens, 5 N. C. to 1 Chit. 579, 580; Davis v. Chip- 

567. pendale. 2Bos.&Pul. 282 ; Howson 

(k) Collins V. Yewens, 10 A. & E. ■". Walker, 2 Bla. Rep. 823 ; and see 

570 ; Robinson v. Yewens, 5 M. & White v. Gompertz, ft Bar. & Aid. 

W. 149. See also Goodwin v. I,or- 905. 
don, 1 A. & E. 378 

K 2 



1.32 sheriff's duty on a bailable capias. 

CHAP. VI. Where a defendant, on a capias since 1 & 2 Vict. c. 110, is' 
^^^^' '' in the custody of an officer to whom process can be directed, 
he can of course be detained under similar process directed to 
the sanne officer ; but when he is in custody of an officer, such 
as the marshal of the Queen's prison, to whom such process 
cannot be directed, there is no direct mode of detaining him, 
and resort must be had to the expedient of procuring a warrant 
from the sheriff, directed to one of the turnkeys, so as at once 
to arrest the defendant in case of his discharge from the first 
custody (p). 
Fees pay.ibie The fccs payable to the sheriff and bailiff on the arrest will 

to ihe sheriff ,^,., 

and btiiitton be found in the section on the remuneration of sheriffs (</). 

When the ^^ ^^^ privilege from arrest, little is required in this place ; 

ai'ii.w"^tirj'de- ^'^'' there are very few cases in which the sheriff is bound to 

vlie'e"^'* P"' take notice of the defendant's privilege. If the sheriff, on a 
bailable writ, were to arrest a peer, or a member of the House 
of Commons, he would render himself liable to be committed 
for a breach of privilege (r), although he would not be liable 
to an action for false imprisonment at the suit of the party 
arrested (s). And by the statute 7 Anne, c. 12, s. 4, the sheriff, 
or his officer, would be subject to fine and imprisonment, and 
corporal punishment, for arresting on civil process an ambas- 
sador or his servant, provided the name of such servant had 
been registered according to the provisions of that act. But 
in all other cases of privilege the sheriff may arrest the de- 
fendant, and no action for false imprisonment can be maintained 
against him for so doing (^). Nor will any action on the case 
lie for arresting, even after notice, a privileged person, when 
the privilege, as in the case of a witness, is the privilege of 
the court (?<). It may he otherwise where the arrest is mali- 

(/)) See Edwards v. Robertson, 5 6 Rep. 53. Per Buller, J., Doug. 677. 

M, & W. 520. (t) Tarlton v. Fisher, Doug. 672; 

(9) Ante, p. 99, el seq. See as to Crossley v. Shaw, 2 Bla. Rep. 1085; 

the previous practice, Martin D. Slade, (Cameron v. Lightfoot, ihid. 1190; 

2 N. R. 59; JNlartin t;. Bell, 6 M. & see also Parsons v. Lloyd, 3 Wils. 

Sel. 220; Dew v. Parsons, 2 B. & 341 ; Walter v. Rees, 4 Moore, 34; 

AlH. 562 ; Plevin v. Prince, 10 Ad. & Stokes v. While, 1 C. M. & R. 223 ; 

E. 498. Magnay v. Burt, 5 Q. B. 381, in 

(r) Bac. Ab. Privilege (C) 6 ; see error. 

1 Keble, 845 ; 4 Moore, 34 ; see (w) Magnay v. Burt, Exchequer 

also Stockdale v. Hansard, II A. & Chamber, in error from Queen's Bench, 

E. 253. 5 Q. B. 381 ; and see Newton v. Con- 

(s) The Countess of Rutland's case, stable, 2 Q. B. 157. 



ARREST, PRIVILEGE FROM. 133 

ciously made after notice of a personal privilege {x). The pro- chav. vi. 
per remedy for a privileged person who is arrested, is by '-1 



moving the Court, out of which the process issued, to be dis- 
charged. For if the sheriff were obliged to allow the defend- 
ant's privilege, it would impose upon him the responsibility of 
deciding and acting upon questions of great difficulty. If, after 
the sheriff has received an order for the discharge of a person 
from custody on the ground of privilege, he unlawfully detains 
him, the proper remedy is an action of trespass, not case {y). 

However, the sheriff may, if he pleases, allow the defendant's 
privilege, and return it to the court (z) ; but he must deter- 
mine it at his own peril, for if the party be not in fact privi- 
leged, the sheriff will be liable to an action {a). 

It will be merely necessary to notice generally the different 
grounds on which persons are privileged from arrest. 

The privilege from arrest is either permanent, temporary, or 
local. Local privileges have been mentioned in another place (6). 

The persons permanently privileged from arrest are, the king The royal 
or queen regnant, the queen consort, and the royal family. The thT'serva'nta 
servants in ordinary, or menial servants, of the king or queen reg- ""^equetn. 
nant (c) ; who even for a debt contracted in trade carried on by 
them (d), are not liable to be arrested, even upon a ca. sa., with- 
out leave obtained from the lord chamberlain of the royal house- 
hold (e). Thus a chaplain in ordinary (/), a lord of the bed 
chamber (g-), a page of the pre3ence(/«), a herald at arms(/;, a 
clerk of the kitchen (^), a candle and fire lighter to the yeomen 
of the guard (/), are privileged. But when a gentleman of the 
privy chamber was arrested, the Court of King's Bench refused 



(x) See Watson v. Carroll, 4 M. (d) Rex v. Forter. 2 Taunt. 167. 

& W. 598, per Parke. B. (e) Rex v. Moulton, 2 Keb. 3 ; T. 

(>j) RJagnay v. Burt, in error, re- Raym. 152; Winter v. Dibdin, 13 

versing the judgment of the Queen's M. & W. 25; Dyer v. Disney, 16 

Bench, 5 Q. B. 381. M. & W. 312. 

(2) Inge !). Ilenick, B. R., M. 22 (/) Byrn d. Dibdin. 3 Dowl. 448; 

Geo. 3, cil. Doug. 675. Winter v. Dibdin, 13 M. & W. 25. 

(a) Delvalle v. Plomer, 3 Camp. (g) Aldridge v. Barry, 3 Dowl. 
47; see also 1 Wils. 20; 4 Taunt. 450, n. 

631 ; and per cnr., Watson v. Carroll, (/() Reynolds v. Pocock, 7 Dowl. 4. 

4 M. & W. 592. (i) Dyer v. Disney, 16 M. & W. 

(b) Ante, p. 75. 312. 

(c) Bartlett v. Hebbes, 5 T. R. (k) BartlettD.Hebbes, 5 T.R. 686. 
686; Forster v. Hopkins, 2 Chit. (/) Ration v. Hopkins, 6 M. & S. 



Rep. 46; see 1 Dowl. & Ry. 127. 271. 



134 sheriff's duty on a bailable capias. 

CHAP. vr. to discharge him on motion, leaving him to his writ of privilege, 
^^"•^- as it appeared by the affidavits that the attendance of the 
gentleman of the privy chamber was very rarely required (m). 
And the same in the case of the fort major or deputy go- 
vernor (w), or wardens (o) of the Tower. And it seems that 
the servants of a queen consort, or dowager, have no such pri- 
vilege (jy). 
Peirs. Peers of the realm are privileged from arrest both upon 

mesne process and in execution (q). Peeresses are also entitled 
to the same privilege, whether they are peeresses by birth, by 
creation, or by marriage (r). This privilege, by the Act of 
Union with Scotland (5 Anne, c. 8, art. 38), is extended to 
Scotch peers and peeresses, whether chosen to sit in parliament 
or not (s). So in like manner, by the stat. 39 & 40 Geo. 3, c. 67, 
art. 4, the Irish peers and peeresses are privileged from arrest (<). 
But if it be a disputed peerage, and the defendant has not been 
summoned to the House of Peers (if an English peer), the 
Court will not try the question upon motion («). But this pri- 
vilege does not protect peers from being attached for contempt 
of the process of the Court (a;), although they cannot be taken 
on an attachment for the non-performance of an award (y). 

(m) Luntley v. Batline, 2 Bar. & peeress in her own right, although she 

Aid. 234 ; Tapley v. Battine, 1 Dowl. marry a commoner ; it is otherwise in 

& Ry. 79 ; see also Rex v. Frampton, the case of a peeress by marriage, if 

2Keb. 485; and 2 Dowl. & Ry. 250; after the death of her husband she 

S. C. 1 B. & C. 139. But see Dyer marry ^a commoner; Co. Litt. 16b ; 

V. Disney, tibi supra. As to the writ 2 Inst, 50. 

of privilege, see Magnay v. Burt, 5 (s) Fortescue, 165; see Digby v. 

Q. B. 381. The Earl of Sterling, 8 Bing. 55; 

(n) Batson v. M'Lean, 2 Chit. R. S. C. 1 Dowl. 248. Where the de- 

48 ; Sand v. Forest, 1 B. & C. 189 ; fendant having voted in the character 

2 D. & R. 250, S. C. But it seems of a Scotch peer on three occasions, 

he could not be arrested within the the Court held him entitled to his pri- 

Tovver, except by leave of the governor: vilege without strict proof of his title. 

ante, 75. (0 Coates v. Lord Hawarden, 7 B. 

(o) Bidgood V. Davies, 6 B. & C. & C. 388. 

84; see last note. (u) Lord Banbury's case, 2 Salk. 

(p) Starkie's case, 1 Keb. 842; 152; Chester v. Upsdale, 1 Wils. 

King and Capell v. Band and Segrave, 278 ; S. C. 2 Lord Raym. 1247. In 

1 Keb. 877. the case of a disputed peerage before 

(q) 6 Rep. 53 ; 9 Rep. 49 a, 68 a ; the House of Lords, the application 

Sly. Rep. 222; 2 Salk. 512; 2 H. for discharge should be made to that 

Bla. 272 ; 3 East, 127. house, if sitting ; Smart v. Johnson, 

(r) 1 Vent. 298 ; 6 Rep. 53, sed 6 Dowl. 90. 

vide Sty. Rep. 252; 2 Chan. Cas. (a) 1 Wils. 332; 1 Burr. 631. 

224 ; see also 7 B. & C. 389, note to (v) Walker v. The Earl of Grosve- 

Coates V. Lord Hawarden. And a nor, 7 T. R. 171. 



ARREST, PRIVILEGE FROM. 



135 



The servants of peers were formerly privileged from arrest, but chap. vi. 
this privilege is now taken away, by the stat. 10 Geo. 3, c. 50, ^^^'^•^- 
s. 10. The Courts will, on motion, discharge a peer who is 
arrested (z) ; but the sheriff is not a trespasser for arresting a 
peer(rt), although he might be committed for a contempt of the 
House of Peers (b). 

Members of the House of Commons are privileged from Memb.isof 

1 rr.. 1- • 7. 1 • • M ">'^ Hunse of 

arrest to the same extent as peers. 1 he nmit ot their privilege Commons. 
when parliament is not sitting has never been very strictly 
defined (c) ; but it seems now to be admitted law that the 
privilege extends to forty days after every prorogation or dis- 
solution, and forty days before the day appointed for the next 
meeting of parliament (c?). It seems that candidates and voters 
are not privileged (e). The Courts, on motion, will discharge a 
member of the House of Commons who has been arrested on 
civil process (y). If an unprivileged person, whilst in custody 
on civil process, is elected a member of parliament, he thereby 
becomes entitled to his discharge (g). In case of a conflict 
between the Court and the House, on a question of privilege, 
the sheriff's duty is to obey the Court, not the House (/«); but 
it seems the House, if he does so, will, notwithstanding such 
duty, commit the sheriff, and not the Court (i) ; and the Court 
cannot help him. 

Clergymen going to and returning from church, and whilst Clergy and 

p . ,. . . ••11/' . /7 > 1 members of 

performing divine service, are privileged from arrest (k), but not the convoca- 
if they stay in church to avoid process (/). Members of the 
convocation, when sitting, it seems, enjoy the same privilege as 
members of the House of Commons (?h). 

(z) Stra. 990. And the Court will G. 437; Goudyv. Duncombe,?(6i.s«p. 

set aside proceedings ; 4 Taunt. 668. (g) Phillips y.WellesIey, 1 Dowl.9. 

(a) Countess of Rutland's case, (/i) Stockdale v. Hansard, 11 Ad. 
6 Rep. 53. & El. 2.53. 

(b) Bac. Abr. Privilege (C) 6 ; see (i) See Case of the Sheriffs of Mid- 
Stockdale v. Hansard, 9 Ad. & El. dlesex, 11 Ad. & El. 273. 
1 ; 1 1 Ad. & El. 253, 297. (A:) 50 Edw. 3, c. 5 ; 1 Rich. 2, 

(c) See Bac. Abr. Privilege (C) 0.15; and see 1 Mar. sess. 2, c. 3; 
4; Scobell, 109, 110. see also 12 Rep. 100; and Goddard 

(d) Holiday v. Pitt, Rep. temp. v. Hariis, 7 Bing. 320; and see 9 
Hard. 28, 37; S. C. 2 Stra. 985; Geo. 4, c. 31, s. 23. 
Comyns' Rep. 444; Goudy v. Uun- (/) 8Ilen.6, c. 1; 1 Eq. Cas. Abr. 
combe, 1 Exch. R. 430. 349. 

(e) London case, 2 Peckw. 288; 1 (m) 12 Rep. 100 ; 3 VVils. 341 ; 
Chit. Arch. 466. 2 Bla. Rep. 1087, 1 190; 1 Eq. Cas. 

(/) SeeCassidyy.Steuait,2Man.& Abr. 349. 



tion. 



I.IG SHERIFF S DUTY ON A BAILABLE CAPIAS. 



CHAP. VI. By the statute 7 Anne, c. 12, (which is merely declaratory of 

^^^'^' '' the law of nations (o)), " All writs and processes that should at 

Embassadors anv time thereafter be sued forth or prosecuted, whereby the 

Mill ilieir ser- •' ■>• ■ ■ c r • 

•"'ts. person of any,ambassador, or other public minister of any foreign 

prince or state, authorized and received as such by her majesty, 
her heirs or successors, or the domestic, or domestic servant of 
any such ambassador or other public minister, might be arrested 
or imprisoned, or his or their goods and chattels might be dis- 
trained, seized, or attached, should be deemed and adjudged to 
be utterly null and void, to all intents, constructions, and pur- 
poses whatsoever." Consuls are not public ministers within the 
meaning of this act, and neither they nor their servants are 
thereby privileged from arrest (p). And in order that a minister 
should entitle himself to the privilege conferred by this act, he 
must be accredited by our court (ly). By the 5th section of the 
above statute, such of the domestic servants of an ambassador, 
&c., as are subject to the bankrupt laws, are deprived of this 
privilege (r). And it has been adjudged (s) that a person claim- 
ing this privilege as the servant of an ambassador, must be really 
and bond Jide his servant at the time of the arrest (<). For, by 
the law of nations, a public minister cannot protect a person who 
is not his bond Jide servant. And a person cannot be considered a 
bond Jide ser want of a minister, if he holds a situation incompatible 
with his duties as such servant (?<). But this privilege does not 
merely extend to servants strictly speaking, but a secretary to 
an ambassador has been holden to be privileged from arrest 
under this act {x). However, it is not necessary that the ser- 
vant should reside in the ambassador's house (?/). Nor is it 
material whether the servant be a foreigner or a subject of this 
country (z). The servant of an ambassador is entitled to this 

(o) Per Lord Mansfield, C. J., 4 Dowl. & Ry. 833 ; S. C. 1 Bar. & 

Burr. 2016; Triquet v. Bath, 3 Burr. Cress. 554. 

1478. (t) Heathfield v. Chilton, 4 Burr. 

(p) Viveash v. Becker, 3 Maule & 2015. 

Sel. 284 ; liarbuit's case, Rep. temp. (m) Masters v. Manby, 1 Burr. 

Talbot, 281. 401 ; Darling ?;. Atkins, 3 Wils. 33. 

(q) Per Lord Mansfield, 4 Burr. (x> Iriquetr. Bath, 3 Burr. 1478; 

2016. Hopkins v. De Roberts, 3 1'. R. 79. 

(r) Fontainier v. Heyl, 3 Burr. (v) Evans u- Hicks, 2 Lord Raym, 

1731. 1524; S. C. 2 Stra. 797. 

(s) Lockwood V, Dr. Coysgarne, 3 (z) Triquet t). Bath, 3 Burr. 1438 ; 

Burr. 1676; see also 3 Camp. 47; Lockwood v. Coysgarne, ibid. 1676; 

1 Wils. 20; Novello v. Toogood, 2 Heathfield v. Chilton, 4 Burr. 2015. 



ARREST, PRIVILEGE FROM. 137 

privilege, although his name be not registered under the 5th chap. vi. 
section of the act (a). This privilege, however, is the privilege ^^^^' '• 
of the ambassador and not of the servant, and a clear case of 
service must be made out before the court will interfere to dis- 
charge the defendant on motion (6). 

By section 4 of the statute of 7 Anne, c. 12, every person Punishment 

. /• .1 , • o • upon persons 

presummg to sue lortn or prosecute any writ, &c. agamst any airesnng am- 
foreign minister or his servant, are to suffer such penalties and theiTservanu, 
corporal punishment, as the Lord Chancellor, the five Chief 
Justices, or any two of them, may judge fit to be inflicted; 
provided the name of such servant has been registered at the 
office of the secretary of state, and transmitted to the office of 
the sheriff of London and Middlesex (c). But although the 
name be registered as the act directs, if the person be not bond 
fide the servant of the ambassador, and the sheriff refuse to 
execute the process, the plaintiff may maintain an action against 
him(rf), or rule him to return the writ(e), and in either case the 
question of the defendant's privilege will be raised before the 
court (/). 

Attornies and other officers of the courts were, before the stat. Atiomies. 
1 & 2 Vict. c. 110, privileged from arrest upon mesne process. 
But an attorney who had ceased to practise {g), or had neglected 
to take out his certificate for one whole year, was not privileged 
from arrest (Ji). Therefore it was held, that an attorney who 
had not practised for several years might be arrested, though 
after suing out the writ, and before the arrest, he had recom- 
menced his practice and taken out his certificate (i). The 
sheriff, however, could not take notice of the privilege of an 
attorney ; nor was he bound to discharge him, even upon pro- 
ducing his writ of privilege (/;), except where the arrest was by 

(a) 4 Burr. 2017 ; 3 T. R. 79. making their return till an indemnity 

{b) Fisher r. i?egrez, 2 Dowl. 279; is given." Per Lord Ellenborough, 

see also S. C. 1 Dowi. 588 ; Novello C. J. Id. ibid. 

V. Toogood, 1 B. & C..554; S. C. 2 (e) Seacomb v. Bowlney, 1 Wils. 

D. & II. 833; Heathfield v. Chilton, 20. 

4 Burr. 20 1 5. ( / ) Kedman's case, 1 Mod. 10 ; 2 

(c) Sections. Salk. 544; 1 Wils. 298 ; 2 Keb. 555. 

(d) Delvalle v. Plomer, 3 Camp. (^r) Brooke v. Bryant, 7 T. R. 25 ; 
41. " This is one among many otiier 1 Bos. & Pul. 4. 

questions which sheriffs, in tiie exe- (/i) Skirrow t. Tagg, 5 JM. & Sel. 

culion of process, must determine at 281. 

their peril. In cases of real difficulty, (i) Brooke v. Bryant, 7 T. R. 25. 

they may call for an indemnity, and (fc) Crosley v. Shaw, 2 Bla. Rep. 

the court will enlarge the time for 1085. 



^"O SHERIFF S DUTY ON A BAILABLE CAPIAS. 

CHAP. vr. process issuing out of an inferior court, in which case it is said 

— — that the officer should allow the writ of privilege instanter {l^. 

And now it seems that an attorney about to quit England may, 
under 1 & 2 Vict. c. 110, be arrested under a judge's order like 
any other person (?«). 
&^'."aTtemiin "^'^^ parties to a suit, and their witnesses, are, for the sake of 
ihe court. public justice, protected from arrest in coming to, attending 
upon, and returning from courts of justice (w); or, as it is usually 
termed, eundo, morando, ct redeundo: and this privilege has been 
holden to extend to all persons who have any relation to a cause, 
and who attend in the course of that cause, though not com- 
pelled by process ; such as bail (o), barristers on the circuit (p), 
(but not when attending at petty sessions, or, as it seems, at the 
quarter sessions, without a previous retainer (^jr),) attorneys also 
on their way to, from, and during their attendance in a cause in 
court (r), or before an arbitrator (s), witnesses attending before 
an arbitrator under a reference at nisi prius (i), before commis- 
sioners of bankrupt (u), before the court of insolvent debtors (a*), 
all of whom have been holden to be privileged from arrest. Wit- 
nesses attending a cause in inferior courts are in like manner pri- 
vileged(2/) ; and by the Mutiny Act, the like privilege is given to 
witnesses attending courts martial. This privilege is the privilege 
of the court in which the cause is pending, and on application to 
such court, the defendant will be discharged, although he may 
have been arrested on process out of another court (s). But the 
sheriff is not bound to notice this privilege, and therefore may^ 
on a claim of such privilege, keep the defendant in safe custody 

(0 2Bla. Rep.1087. N. S. 660. 

(m) Thompson v. Moore, 1 Dowl. (s) Webb v, Taylor, 1 Dowl. & L. 

N. S. 283; Flight v. Cook, 1 Dowl. 676. 

& L. 714. (() Spence v. Stewart, 3 East, 89. 

(n) Lightfoot v. Cameron, 2 Bla. See also 3 Bar. & Aid. 252 ; S. C. 1 

Rep. 1113; 1 Vent. 11 ; 2 Kol. Abr. Chit. Rep. 679. And see Watson on 

272 ; 1 H. Bla. 636 ; 1 Campb. 229 ; Awards, 78. 

and see 11 East, 439 ; 3 Bar. & Aid. (u) Selby v. Hills, 1 Dowl. 257 ; 

252. S. C. 8 Bing. 166; 7 Ves. 316; 1 

(o) Meekins v. Smith, 1 H. B. 636 ; Rose, 265, n. 

Rimmer ?;. Green, 1 M. & Sel. 638; Ci) Wittingham v. Matthews, 6 

2 Rose, 23. Taunt. 356. 

(p) 1 H. Bla. 637; see also New- (y) Com. Dig. Privilege (A) ; 2 

ton V. Constable, 2 Q. B. 167, per Rol. Abr. 272; Wallers v. Rees, 4 

Lord Denman, C. .T. Moore, 34. 

(q) Newton V. Constable, nhisupra. (2) Walters v. Rees, 4 Moore, 34 ; 

(?•) See Williams j;. Webb, 2 Dowl. Walker v. Webb, 3 Anstr. 941. 



ARREST, PRIVILEGE FROM. 139 

until he is ordered to be discharged by the court(«). A person chap. vi. 

is not however privileged during his return home from lawful ' 

custody (b). The privilege, in general, enures euiido, morando, 
et redeundo, and it is not essential that the party in going or 
returning should go at full speed, or by the nearest way pos- 
sible (c) ; thus, where a defendant, after the rising of the court, 
went with his attorney and witnesses to dine at a tavern in 
Palace Yard, and was arrested whilst at dinner, it was held that 
his privilege redeundo had not expired (c?). So where the plain- 
tiff, after a motion in the cause, in his way home first called at 
his office to refresh himself and sort his papers, and after a 
lapse of two hours left the office to proceed home, but on the 
way went into a tailor's shop, where he was arrested, his pri- 
vilege was allowed (e). If, however, there is any substantial 
deviation (f) or unreasonable delay, even for want of means (g), 
the privilege ceases, A man who has been in custody on a 
criminal charge, and who is acquitted and discharged, has, it 
seems, no privilege from arrest redeundo (h). 

By the Bankrupt Act, 5 & 6 Vict. c. 122, s. 23, it is enacted, Bankrupts. 
that any person adjudged bankrupt "shall be free from arrest 
or imprisonment by any creditor in coming to surrender, and 
after such surrender during the time by this act limited for such 
surrender, and such further time as shall be allowed him for 
finishing his examination, and for such time after finishing his 
examination until his certificate be allowed and confirmed, as 
the court authorized to act in the prosecution of the fiat shall 
from time to time, by indorsement upon the summons of such 
bankrupt, think fit to appoint, provided he was not in custody 
at the time of such surrender ; and if such bankrupt shall be 
arrested for debt or on any escape warrant in coming to sur- 
render, or shall after his surrender be so arrested within the 
time aforesaid, he shall, on producing his summons signed as 

(a) Walters v. Rees, 4 Moore, 34 ; Dowl. N. S. 660; Luntley v. Natha- 
Watson i;. Carroll, 4 M. & W. 592. niel, 2 Dowl. 51 ; Phillips v. Price, 

(b) Anon. 1 Dowl. 157 ; Goodwin 1 D. & L. 1 10. 

V. Lordon, 1 A. & E. 378. ( /) Smith v. Dickenson, 1 M. & 

(o) See per Lord Abinger, C. B. in \V. 488. 

Strong V. Dickenson, 1 M. & W. 491. (g) Spencer v. Newton, 1 N. & P. 

(d) Lightfoot V. Cameron, 2 W. B. 818 ; 6 A. & E. 623, S. C. 

1113. (h) Goodwin v. Lordon, 1 Ad. & 

(e) Pitt V. Coombs, 5 B. & Adol. El. 378. 
1078. See also Williams v. Webb, 2 



140 sheriff's duty on a bailable capias. 

CHAP. VI. required by this act to the officer who shall arrest him, and 
giving such officer a copy tl)ereof, be immediately discharged; 
and if any officer shall detain any such bankrupt after he shall 
have shown such summons to him, such officer shall forfeit to 
such bankrupt, for his own use, the sum of 5/. for every day he 
shall detain such bankrupt, to be recovered by action of debt in 
any court of record at Westminster, in the name of such bank- 
rupt, with full costs of suit(i); and it shall be lawful for the 
court, at the time appointed for the last examination of the bank- 
rupt, or any enlargement or adjournment thereof, to adjourn 
such examination sme die, and in such case he shall be free from 
arrest for such time, not exceeding three months, as such court 
shall from time to time by indorsement upon the summons of 
such bankrupt appoint, with like penalty upon any officer de- 
taining such bankrupt after having been shown such summons." 
And by the 42d section of the same act, a certificated bank- 
rupt is privileged from arrest for any debt, claim, or demand 
which was proveable under the fiat, and shall be discharged on 
entering an appearance, and may plead in general that the cause 
of action accrued before he became bankrupt. The decisions 
on the above sections would be out of place here, as they do not 
affect the sheriff, and are to be found in the treatises on bankrupt 
law (A'). Nor does it belong to a treatise on the duty of the she- 
riff, to enter upon the question what things are and what are not 
proveable under the fiat, as it is not for the sheriff to decide 
whether or not the defendant is privileged from arrest, the 
sheriff being protected if he arrest the bankrupt. A certificated 
bankrupt, or discharged insolvent, however, it has been held, is 
not liable to be arrested on a subsequent promise to pay a debt 
discharged by his bankruptcy or insolvency (/). 

Besides and independently of the privilege conferred on the 
bankrupt by statute, he has been held privileged (in the same 
manner as parties, witnesses, &c. attending a cause) during 

(i) It may be questionable whether Ry. 240 ; S. C. 1 Bar. & Cres. 116; 

this action should be brought against Wilson v. Kemp, 3 M, & Sel. 595. 

the sheiiff or the bailiff; from the See also 6 Taunt. 563; 2 Burr. 736 ; 

wording of the act it would appear the By the 5 & 6 Vict. c. 122, s. 43, a 

latter. See Sturney q. t. v. sheriff of bankrupt is not liable on a subsequent 

Middlesex, 11 Kast, 25. promise 1o pay a debt barred by his 

(k) Archbold's Bankrupt Law, by certificate, unless the promise is in 

Flather, 10th edit. 318. writing. 

(/) Peers V. Gadderer, 2 Dow. & 



ARREST, PRIVILEGE FROM. 141 

attendance on proceedings before the commissioners, e. g. in chap. vi. 
returning from the hearing of a petition for leave to surren- ^^^^' ^' 
der(m), and in going to, staying at, and returning from a 
meeting to declare a dividend which he attended at the verbal 
request of the commissioners (?«). 

In like manner, by the Insolvent Debtors' Act, 1 & 2 Vict, insolvents. 
c. 110, s. 90, an insolvent discharged under that act is pro- 
tected from arrest under the judgment entered up in pursuance 
of the act, and also for any debt, money, or costs in respect of 
which he is entitled to the benefit of the act, or any judgment, 
decree, or order for payment of the same ; and a judge may, on 
application, order the discharge of a prisoner arrested for such 
debt, and with such costs as he shall think fit. 

And by 5 & 6 Vict. c. IIG, and 7 & 8 Vict. c. 96, protection 
may be granted by the Court of Bankruptcy to persons who 
petition under the provisions of those acts. 

Provisions to a similar effect are contained in the 7 & 8 Vict. 
c. 90, for facilitating arrangements between debtors and cre- 
ditors. 

The sheriff, notwithstanding the defendant claims privilege 
from arrest by his bankruptcy and certificate, or under a dis- 
charge as an insolvent debtor, should not discharge him without 
an indemnity, or by order of the Court, for otherwise he might 
be driven to litigate with the plaintiff the question of the de- 
fendant's privilege ; for the Court will not stay proceedings in 
the event of an action brought against a sheriff for discharging 
a certificated bankrupt arrested by him, without an order of a 
judge (o). 

No petty officer or seaman, marine or non-commissioned Scimen and 
officer of marines, on board of any of his majesty's vessels, 
and no soldiers (p), shall be holden to bail, or arrested on any 

(m) Exp. Jackson, 15 Ves, 116. tend not merely to common soldiers 

(n) Arding v. Flower, 3 Esp. 117; and Uoopers in the life guards, ike, 

8 T. R. 534. See Selby v. Hills, 8 Bayley v. Jenner, 1 Stra.2, but alto 

Bing, 166; 1 M. & Scott, 253, S. C; to non-commissioned and warrant offi- 

"Willingham v. Matthews, 2 Marsh. 57. cers, as gunners, Johnson v. Lowth, 

(o) Sherwood v, Henson, 4 Taunt. 1 Stra. 7 ; Serjeants and drummers, 

631 ; see Tarlton v. Fisher, 2 Doug. Lloyd v. Woodall, 1 Wils. 216. For 

671; Whitworth v. Clifton, 1 M. & a serjeant is a soldier with a halbert, 

Rob. 531. and a drummer a soldier with a drum ; 

(p) By the Annual Mutiny Act. Lloyd v. Woodall, 1 Bla. Rep. 30. 

These acts have been construed to ex- These acts do not, however, extend to 



soklitTs. 



1-1'2 sheriff's duty on a bailable capias. 

CHAP. vr. process or execution whatsoever, contracted subsequently to 

''' his having entered the service ; nor for any debt under SOL 

previously to his having so entered; and in case of any of the 
above-mentioned persons being arrested, any of the judges of 
the Court out of which the process or execution issued is em- 
powered to discharge him. 

And by the 44 Geo. 3, c. 13, ss. 1,4, if any petty officer or 
seaman pay the debt for which he has been arrested, give a bail 
bond, or be otherwise entitled to be discharged out of the cus- 
tody, the sheriff or other oflicer in whose custody he shall be, 
instead of discharging him, shall, under the penalty of 100/., 
have him conveyed to the commander of one of his majesty's 
ships, or some authorized commissioned officer, in order that 
he may be kept to serve on board the fleet as before. On this 
statute it was held, where a bailiff, having arrested a seaman, 
discharged him on giving a bail-bond, that the sheriff was liable 
to a qui tarn action for this penalty (r). 
Writ of pro- The last privilege necessary to be noticed is, that the queen 

lection. • -i . • - , 

may privilege, by her writ of protection, any person in her ser- 
vice from arrest, during a year and a day (s). But these writs 
are never granted at this day ; even in Lord Coke's (^) time they 
were almost totally disused. 
Executors, Besides the privilege from arrest which the persons above- 

mentioned have, there are many persons who by the practice of 
the Courts, and by particular statutes, are not allowed to be holden 
to bail, as executors and administrators for debts due in their 
representative capacity, assignees of bankrupts, hundredors, 
corporators, for demands on them in their representative cha- 
racter ; the consideration of this subject, however, belongs not 
to the duty of the office of sheriff, for he would not be punish- 
able for making the arrest, if commanded so .to do ; and it is his 
duty to obey the writ, as he is protected in so doing. Who 
may or may not be holden to bail will be found discussed at 
length in Mr. Tidd's and Mr. Archbold's books of Practice ; it 

commissioned officers; Tidd's Prac. ward, 4 Taunt. 557. 

202, 9th edit. ; Chit. Arch. 475. See (r) Sturney ?;. Smith, 11 East, 25. 

further Flanders v. Nicholls, Barnes, (s) Burrodale ii. Lord Cutts, 3 Lev. 

432 ; Bowler v. Owen, 2 T. R. 270 ; 332 ; Finch, L. 454. And see Sir T. 

R. V. Archer, 1 Burr. 636. 637,446; Shirley's case. Hob. 115. 

Rickman v. Studwick, 8 East, 105; (t) 1 Inst. 131. 

Lord Raym. 1246; Bryan v. Wood- 



&c, 



ARREST, WHEN AND HOW MADE. 143 

is hoped that all that is necessarily connected on that head with chap vi. 
the duty of sheriff will have been found in the foregoing pages. — _ "—L. 
The Stat. 2 Will. 4, c. 39, s. 4, requires that so many copies Copy of writ 

r ^ to be deliver- 

of the capias, together with every memorandum or notice sub- ed to deiend- 

•111 111-1 1 1 , ant on arrest. 

scribed thereto, and all mdorsements thereon, as there may be 
persons intended to be arrested thereon, shall be delivered to 
the sheriff or other officer or person to whom the same may be 
directed, or who may have the execution and return thereof, 
and who shall upon or forthwith after the execution of such 
process cause one such copy to be delivered to every person 
upon whom such process shall be executed by him, and shall 
indorse on such writ the true day of the execution thereof. 
And a similar provision is introduced in the form of cajiias 
given by the stat. 1 & 2 Vict. c. 110. Where the arrest took 
place at nine o'clock in the morning, and the copy of the writ 
was not delivered to the defendant until seven in the evening^ 
it was held that the statute had not been complied with(t<). 
The copy delivered must be a correct copy, and any variance 
by which the meaning of the writ is altered will be fatal, and 
will invalidate the arrest ; as if the form of action (x) or the 
date of the writ be omitted (y), or if the copy of a writ be ad- 
dressed to the sheriff instead of the sheriff* of London (z) ; but 
a mere literal variance, not in any way affecting the sense of the 
writ, would be immaterial ; as if the copy was " if se shall be 
found, &c.," instead of " if she shall be found, &c." (a). The 
omission to serve a true copy of the writ does not render the 
arrest void, but merely irregular, and such irregularity may 
be waived by the defendant's omitting to take advantage of it 
within a reasonable time (b). If a defective copy of a capias is 
delivered to the defendant, the court will presume that a defec- 
tive copy was delivered to the sheriff; it will not presume that 

(w) Shearman D. M'Knight, 5Dowl. Dowl. 319 ; Cooke v. Vaughan, 4 M. 

572. & W. 69. 

(i) Copley v. Medeiros, 7 Man. & (a) SuUon v. Burgess, 3 Dowl. 

G. 426. 489. See also other instances of vari- 

(y) Smarti). Johnstone, 3 M. & W. ances from the writ which have been 

69. held immaterial, Pocock v. Mason, 1 

(s) Nicol V. Boyne, 2 Dowl. 761 ; Bing. N. C. 245 ; Colston i;, Berens, 

Moore v. Magan, 16 M. & W. 95. 3 Dowl. 253; Cooper v. Wheale, 4 

See also other instances of variances Dowl. 281 ; Macdonald v. Morllock, 

which have been held material, Smith 2 Dowl. & L. 963. 

V. Pennell, 2 Dowl. 654; Street v. (b) Brashour v. Russell, 6 Dowl. 

Carter, ib, 671 ; Smith v. Crump, 1 185. 



1 t4 SllEIllFf's DUTY ON A BAILABLE CAPIAS. 

CHAP. VI. the slieriff was wrong by receiving a correct copy from the 
s^cT-i- plaintiff, and serving a defective one (c). The court will not 
permit an amendment in the copy served (d). 
Day of arrest The 2 Will. 4, c. 39, s. 4, also requires the sheriff to indorse 
on iiie writ, on the Writ the true day of the execution thereof; and by Reg. 
Gen. M. T. 3 Will. 4, r. 4, it is ordered, that such indorsement 
shall be made within six days at the latest after the execution 
thereof, and that in default thereof the sheriff or other officer, 
&c. shall be liable in a summary way to make such compensa- 
tion for any damage which may result from his neglect, as the 
court or a judge shall direct. And the day of the execution 
ought to appear in the return. But an omission of it would 
not, it seems, be ground for an attachment (e). The consequence 
of the omission is, that the plaintiff may apply to the court to 
compel the sheriff to amend his return, and pay such damages 
as the plaintiff has sustained by the omission. The stat. 1 & 2 
Vict. c. 110, does not in terms require this indorsement to be 
made on a capias issued under the authority of that act, but it 
seems to be necessary (/). And the capias commands the 
sheriff to state the day of its execution in the return. 



Section II. 

Proceedings after the Arrest. 

Sheriff's duly When a defendant is arrested, or in the custody of the sheriff, 

soih" liHiis on mesne process, the sheriff must take care that he have him at 

baHabieca-* the rctum of the writ, and should keep him in close custody, 

P""' unless he deposit money in lieu of bail, or give a bail-bond with 

sufficient sureties, or the plaintiff consent to his discharge. The 

sheriff's duties and liabilities on these heads will be the subject 

of this section. 

Within what The defendant being in the custody of the sheriff on a bailable 

arrest iherie capius, the sheriff is liable to a penalty of 50/. if he carry him 

fendant must , , ,1 -.i^i- l ^ • 

be conveyed to any tavem or other house without his consent, or to prison 

to prison. 

(c) Hodd V. Langridge, 5 Dowl. 16 M. & W. 95. 

721. (e) I Chit. Arch. 534, &c. ; Rid- 

(d) Byfield v. Street, 10 Bing. 27 ; ley v. Watson, 2 M. & Scott, 724. 

2 Dowl. 73t', S, C; Rennie v. Bruce, (/) See Jervis's New Rules, 95. 

2 Dowl,& L. 963; Moore v. Magan, 



PROCEEDINGS AFTER THE ARREST. 



145 



within twenty-four hours, unless he refuse to be carried in the chap vi, 
meantime to some safe and convenient dwelhng-house, to be _ ^^^^' "' 
named by him, not being his own house («). And it is the 
duty of tlie officer making the arrest, and in whose custody the 
defendant is, to ask him to nominate some safe and convenient 
dweHing-house to which he may be carried ; and the taking of 
liim to prison within twenty-four hours cannot be justified, 
unless he has refused to nominate such house ; and evidence 
that the defendant did not express any objection to being carried 



(<i) 32 Geo. 2, c. 28. I subjoin 
the act iiself. as it may be desiiable 
for the purpose of reference : — " No 
sheriff, under-sheriff, bailiff, serjeant 
at mace, or other officer or minister, 
shall convey, or carry, or cause to be 
conveyed or carried, any person or 
peisons by him or them arrested, or 
being in his or their custody , by virtue 
or colour of any action, suit, process, 
or aUachment, to any tavern, ale- 
house, or other public victualling or 
drinking iiousc, or to the private house 
of any such officer or minister, or of 
any tenant or relation of his, without 
the free and voluntary consent of the 
person so arrested, or in custody ; nor 
charge any such person or persons 
with any sum of money for any wine, 
beer, ale, victuals, tobacco, or any 
other liquor or things whatsoever, 
save what he shall call for of his own 
free accord ; nor shall cause or pro- 
cuie him to call or pay for any such 
liquor or things, except what he shall 
particularly and fieely ask for; nor 
shall demand, take, or receive, or 
cause to be demanded, taken, or re- 
ceived, directly or indirectly, any 
other or greater sum or sums of money 
than is or shall be by law allowed to 
be taken or demanded for any arrest 
or taking, or for detaining or waiting 
till the person or persons so arrested 
or in custody shall have given an ap- 
pearance or bail, as the case shall re- 
quire, or agreed with the person or 
persons at whose suit or prosecuiion 
he shall be taken or arrested, or until 
he shall be sent to some proper gaol 
belonging to the county, riding, divi- 
sion, city, town, or place where such 
arrest or taking shall be ; nor shall 



exact or take any reward, gratuity, or 
money, for keeping the person or per- 
sons so F.rrested or in custody out of 
gaol or prison." 

Sect. 2. " No sheriff, &c. shall 
catry any such person to any gaol or 
prison within twenty-four hours from 
the time of such airest, unless such 
person or persons so arrested shall re- 
fuse to be carried to some safe and 
convenient dwelling-house of his own 
nomination or appointment, witlim a 
city, borough, corporation, or market 
town, in case such person or persons 
shall be there arrested, or within three 
miles from the place where such arrest 
shall be made, if the same shall be 
made out of any city, borough, corpo- 
ration, or market town, so as such 
dwelling-house be not the house of 
the person so arrested, and be wuhin 
the city, &c. in which the person un- 
der arrest was arrested ; and then 
and in any such case, it shall be lav.'- 
ful to and for any such sheriff, or other 
officer or minister, to convey or carry 
the person or persons so arrested, and 
refusing to be carried to such safe and 
convenient dwelling-house as afore- 
said, to such gaol or prison as he may 
be sent to by virtue of the action, 
writ, or process against him ; and that 
no sl'.enff, &c. shall take or leceive 
any ether or greater sum or sums for 
one or more night's lodging, or for a 
day's diet, or other expenses, of any 
peison or persons under arrest on any 
writ, action, attachment, or process. 
Other than what shall be allo\red as 
reasonable in such cases by some 
order or orders made by justices of the 
peace in pursuance of the said act." 



14fi sheriff's duty on a bailable capias. 



CHAP. VI. 

si.cr. II. 



to prison will not alone be sufficient evidence of his consent (6). 
The sheriff" has a right to make any reasonable objection to the 
house noiTiinaled by the defendiint, if he thinks it is not a safe 
and convenient house ; and on this ground he may reasonably 
object to his being carried to his attorney's house (c). A request 
to be taken to the house of a person, merely for the purpose of 
consulting him, is not a nomination of a house within the mean- 
ing of the statute; for the sheriff" is not bound to take a prisoner 
to any house he may desire to go to for any purpose whatever, 
but only to some safe and convenient dwelling-house for the 
purpose of his remaining there the twenty-four hours (fZ). 
Where the defendant, while the officer was conveying him to 
gaol illegally, within twenty-four hours after the arrest, con- 
sented to go to a tavern to execute an agreement with his cre- 
ditor to obtain his discharge, it was held that this was not a 
consent to be carried there within the meaning of the statute (e). 
Generally speaking, where the defendant does not give a bail- 
bond, it is the duty of the sheriff" to lodge the defendant in the 
county gaol on the return of the writ ; but he cannot be taken 
there until the twenty-four hours have expired ; and if the 
defendant be kept in a lock-up house or other place, the sheriff" 
keeps him at his peril ; but the sheriff" is not liable to an action 
on the case as for an escape, for keeping a defendant arrested by 
him in custody after the return of the writ, without taking him 
to the county gaol, unless the jury find that the plaintiff" has been 
delayed or prejudiced in his suit(y"}; and of course it can be no 
escape to keep the defendant in a lock-up house from the arrest 
until the return of the writ(g). 
Where (le- If the defendant is ill, and unable to be removed, the sheriff* 

[n"i!f be're'."" should nevertheless an'est him, and detain him in custody ; and 
if he continues in the same state up to the time of the return of 
the writ, the sheriff" should return '■Hanguidus," which would be 
a sufficient excuse for not having him in co'.wtiji). 

(h) Dewliirsi y. Pearson, 1 Dowl, Taunt. 608; Brandliriif v. Kent, 1 

664; Simpson i'. Renlon, 5 13. & T. R. 60 ; Williams i'. Moslyn, 4 M. 

Atlol. 35. & W. 145. 

(c) Silk V. Huraphery, 4 A. &: E. (g) Houldltch v. Birch, 4 Taunt. 
959. 603. 

(d) Ibid. (h) See Perkins y.aieacher, 1 Dowl. 

(e) Barshum v. Bullock, 10 Ad. & 21 ; Cavenagh v. Colleit, 4 B. & Aid, 
E. 23. 27 ; Baker i'. Davenport, 8 Dowl. & 

(/) Planck 1-. Anderson, 5 T. 11. R. 606; Stevens r. Jackson, 6 Taunt. 
37; see also Iloulditch r. Birch, 4 106. 



mos'ed. 



PROCEEDINGS AFTER THE ARREST. 147 

Whilst the defendant is in custody, he should be allowed, at chap. vi. 
his free will and pleasure, to send for and have at all seasonable ^^^^' "* 



times any beer, ale, or other food, beddino;, linen, or other neces- Regniaiions 

. ■' . . . . reopening ilie 

sary things, without paying anything therefor to the sheriff. Sec, irtaim.iii of 

in whose custody he is (i) ; and also, to prevent extortion, the resieii by ihe 

gaolers are not allowed to take any greater fees than are settled, 

enrolled, and registered (A;), according to the directions of that 

act. And the court out of which the process issues, in term, or 

a judge in vacation, or at the assizes, have full power to hear, 

examine, and redress any abuses in any gaol or prison, whereof 

any prisoner shall present his complaint (/). Tiie statute also 

enacts, " that if any sheriff, under-sheriff, bailiff of any liberty, 

bailiff, Serjeant at mace, gaoler, and other officer and person as 

aforesaid, sliall offend in anywise against the said act, he shall 

for every such offence (over and above such other penalties or 

punishments as he may be liable to) forfeit and pay to the party 

thereby grieved the sum of 50/,, to be recovered with treble costs 

of suit, by action of debt, bill, plaint, or information, in any of 

his majesty's courts of record at Westminster (m)." In order 

to recover against a sheriff on this statute, it is incumbent on 

the plaintiff' to prove the table regulating the fees to be allowed, 

for this statute superseded the stat. 23 Hen, 6, c. 9, as to fees 

to be allowed on arrests on mesne process (n). It was ruled at 

nisi prius, by Lord Kenyon, that a sheriff was not liable to an 

action for extortion committed by an officer not named in the 

warrant, to whose lock-up house the defendant had been brought 

on being arrested (o). 

At common law, the sheriff was not justified in discharging Depositor 
a defendant arrested by him on mesne process, even upon receiv- |he"sh'!^,-7tf'in 
ing from him the sum sworn to and costs (y;); and as it often J,',';^ paj'',i'e|,t 
happened that persons, who were able to deposit a sum of money '''^^'eof into 
equal to the sum sworn to and costs, were not able to find bail 
for their appearance, for this reason it was first provided by 
the stat. 13 Geo. 3, c. 46, s, 2, that any persons arrested upon 

(0 32 Geo. 2, e. 2B, s, 4. by 1 Vict. c. 55. As to recovering on 

(k) Ihid. s. 12. the count for money fiad and received, 

(0 Ibid. s. 11; Ex parte Evans, see Lovell v. Simpson, 3 Esp, 153; 

3 Bos, & Pul.88. ■ 2 N, R. 60. 

(ot) Uid. s. 12. (()) George v. Perring, 4 Esp. 63, 

(?i) Martin v. Slade, 2 N. K. 59 ; (/;) Slackford v. Austen, 14 East, 

Jaques v. Whitcomb, 1 Esp. 361. 468;' see also Wooden v. Moxon, 

The 23 Hen. 6, c. 9, is now repealed 6 Taunt. 490. 

L 2 



M8 sheriff's duty on a bailable capias. 



SFOT. 11. 



niAP. VI. mesne process, witl)in England and Ireland, in lieu of giving a 
bail-bond, may deposit with the sheriff, under-sheriff, or other 
ollicers, the sum indorsed upon the writ, together with lOl. to 
ensure the costs which may have accrued to the time of the 
return of the writ, and also such sum as may have been paid for 
tlie king's fine, where the action is by original, and thereupon 
he shall be discharged ; and that the sheriff shall, at or before 
the return of the writ, pay into court the sum so deposited with 
him ; and if bail be afterwards duly put in and perfected, the 
defendant may obtain the money out upon motion. By a 
subsequent act, 7 & 8 Geo. 4, c. 71, s. 2, after reciting the 43 
Geo. 3, c. 46, s. 2, and that it was expedient to extend its pro- 
visions, it, was enacted, " that in all cases in which any defend- 
ant shall have been discharged from arrest upon making such 
deposit as is required by the said recited act, and the sum so 
deposited shall have been paid into court, it shall be lawful for 
such defendant, instead of putting in and perfecting special bail 
in the action according to the course and practice of the court, 
to allow the sum so deposited with the sheriff, and by him paid 
into court as aforesaid, together with the additional sum of 10/., 
to be paid into court by such defendant as a further security for 
the costs of the action, to remain in the court to abide the event 
of the suit ; and in all cases where the defendant shall have been 
arrested, and shall have given bail to the sheriff, or shall have 
been arrested and remain in custody, it shall be lawful for such 
last-mentioned defendant, instead of putting in and perfecting 
special bail, to deposit and pay into the said court the sum in- 
dorsed upon the writ, together with the amount of the king's 
fine, if any, upon the original writ, and the further sum of 20/, 
as a security for the costs of the action, there to remain to abide 
the event of the suit ; and thereupon the said defendant may 
and lie is hereby required to enter a common appearance, or file 
common bail in the action, within such time as he would have 
been required to have put in and perfected special bail in the 
action according to the course of the said court, or in default 
thereof the plaintiff in the action is hereby empowered to enter 
such common appearance or file common bail for the said de- 
fendant, and the cause may proceed as if the defendant had put 
in and perfected special bail; and in case judgment in the said 
action shall be given for the plaintiff, he shall be entitled, by 



PROCEEDINGS AFTER THE ARREST. 149 

order of the court, upon motion made for that purpose, to re- chap. vi. 
ceive the money so remaining in, or so deposited or paid into — 1— ! — 1_ 
the court as aforesaid, or so much thereof as will be sufficient to 
satisfy the sum recovered by the judgment, and the costs of the 
application ; and if judgment be given in the said action for the 
defendant, or the plaintiff discontinue his suit, or be otherwise 
barred, the said money so deposited and paid into court, or so 
much thereof as shall remain, shall, by order of the court, upon 
motion to be made for that purpose, be repaid to such defend- 
ant." Section 3 of the same act enacted, " that it shall and 
may be lawfid for the said defendant who hath made his election 
to make such deposit and payment as aforesaid, at any time in 
the progress of the cause, before issue joined in law or fact, 
or final or interlocutory judgment signed, to receive the same 
out of court, by order of the said court, upon putting in and 
perfecting special bail in the cause, and payment of such costs 
to the plaintiff as the said court shall direct." And section 4 
provides also, " that it shall and may be lawful for any defend- 
ant who shall have put in and perfected special bail in any cause, 
upon motion to the court in which the action is brought, if the 
court shall so think fit, to deposit and pay into court the sum . 
which would have been deposited and paid in case the defendant 
had originally elected to do so, together with such further sum 
to answer the costs as the court may direct, to abide the event 
of the said suit, and to be disposed of in manner aforesaid, and 
thereupon it shall be lawful for the court to direct a common 
appearance to be entered, or common bail to be filed, for the 
defendant, and an cxoneretur to be entered upon the bail-piece 
in the said cause." 

Finally, when the stat. 1 & 2 Vict. c. 110, abolished the ge- 
neral power of arrest on mesne process, but gave the collateral 
power of arrest in certain cases, under a judge's order made 
upon affidavit that the defendant was about to quit England, it 
provided, by sect. 4, " that such defendant, when so arrested, 
shall remain in custody until he shall have given a bail-bond to 
the sheriff, or shall have made deposit of the sum indorsed on 
such writ of capias, together with 10/. for costs, according to the 
present practice of the said superior courts ; and all proceedings 
as to the putting in and perfecting special bail, or making de- 
posit and payment of money into court instead of putting in and 



150 sheriff's lutv on a bailable capias. 

CHAP. VI. perfecting special bail, shall be according to the like practice of 

SECT. II. ^1 . , . ^ , , . , 

the said superior courts, or as near thereto as the circumstances 

of the case will permit (;■)." 

Money paid to an officer on an arrest is presunned to have 
been paid in lieu of bail under the authority of these statutes, 
unless a discharge, or an acknowledgment in writing for the 
debt and costs be given to the defendant (s). The sheriff is not 
entitled to any poundage or fees deducted from money so de- 
posited with him, or paid by him into court (<). 

Where the sheriff pays into court, in pursuance of the statute, 
the money deposited with him in lieu of bail, the defendant may 
afterwards, on putting in and perfecting bail in due time(tj), or 
on rendering in discharge of his bail (x), obtain the money out 
of court upon motion, whether deposited by himself, or by a 
friend on his behalf (?/). On the other hand, if bail be not duly 
put in and perfected, and the defendant be not rendered, then, by 
order of the court, upon motion, the money so deposited and paid 
into court may be taken out by the plaintifl', and that, since 1 & 
2 Vict. c. 110, without waiting for the final determination of the 
suit(s;). Where, however, a defendant who was arrested by a 
wrong name deposited money in lieu of bail, without prejudice, 
the court refused to allow the plaintiff to take it out on the de- 
fendant's failing to perfect bail (a). And where, the defendant 
having paid the debt and lOl. for costs to the sheriff on his ar- 
rest, a bond fide correspondence commenced for the purpose of 
settling the action, which did not terminate until after the day 
for perfecting special bail, and on its termination the defendant 

(r) See Scherwinski v. Peronnet, Chit. Rep. 143 ; Hill v. Ching, 7 

6 ]M. & \V. 90 ; 8 Dowl. 229. S. C. Moore, 432 ; 1 Bing. 103, S. C. 

(4) Wain V. Bradbury, 1 Smith's {y) See Nunn i-. Powell, 1 Smith's 

Rep. 127. Rep. 13; Edelslen U.Adams, 2 Moore, 

(0 Stewart v. Bracebridge, 2 B. 610; 8 Taunt. 557, S. C; Bull v. 

& Aid. 770; 1 Chit. Rep. 529, S. C; Turner, 1 M. & W. 47 ; Douglass r. 

Haines v. Nairn, 2 Dowl. 43. Stanbrough, 3 Ad. & til. 316. 

(«) Green v. Glasscock, 1 Bing. (:) Tuton v. Gale, 1 Dowl. N. S. 

N, C. 516; 1 Scott, 402, S. C. ; 383; see Rowe v. Sofllv, 6 Bing. 

Young V. Mahby, 3 Dowl. 604; 634 ; 4 Moo. & P. 464, S.'C; John- 

Geach ?;. Coppin, id. 74; see New- son v. Wall, 4 Dowl. 315; Hews 1;. 

man I'. Hodgson, 1 B. & Add. 422; Pyke, 2 C. & J. 359; Hubbard v. 

Stultz V. Heneage, 4 M, & Scott, 472 ; Wilkinson, 8 B. & C. 496 ; Reynolds 

Ball V. Stafford, 2 Scott, 426. v. Wedd, 6 Dowl. 728. 

(a) Chadwick v. Battve, 3 M. & (a) Cadby v. Parsons, 5 Taunt. 

Sel. 283 ; Harford v. Hariis, 4 Taunt. 623. 
669. See also Gould v. Berry, 1 



THE BAIL-BOND. 151 

paid in the additional 10^. required by the 7 & 8 Geo. 4, c. 71, chap. vi. 
the plaintiff was not allowed to take the money out of court (6). ^'^^^- "' 

It is not necessary, for the purposes of this work, to enter 
minutely into the details of the practice relating to the putting 
in and perfecting bail, and the payment out of court of money 
deposited in lieu of bail; it is fully stated in the books of prac- 
tice, and in the authorities referred to in the preceding notes. 

Before the statute of 23 Hen. 6, c. i), the sheriff was only Bail-bond. 
obliged to bail a defendant in his custody on mesne process, when 
he sued out a writ of mainprize ; thougli the sheriff might take 
a security for releasing a defendant out of his custody if he 
pleased (c). To remedy the extortion and oppression necessarily 
consequent on such discretion, that statute was passed, the en- 
actment whereof is twofold ; jirst, as to the persons to be let to 
bail, with respect to whom it is enacted, that " sheriffs, &c., 
shall let out of prison all manner of persons by them arrested, 
or being in their custody, by force of any writ, bill, or warrant, 
in any action personal, or by cause of indictment of trespass) 
upon reasonable sureties of sufficient persons having sufficient 
within the counties where such persons be so let to bail or main- 
prize, to keep their days in such place as the said writs, bills, or 
warrants shall require ; persons being in their ward by condem- 
nation, execution, capias utlagatum, surety of the peace, or by 
special commandment of any justice, and vagabonds refusing to 
serve according to the statute of labourers, only excepted (tZ)." 

This part of the statute is obligatory upon the sheriff. And In what cases 

° .,.„, Ihesheriffis 

therefore if a bail-bond be tendered to under-sheriff or bainff, obUgrd lo 

discharge a 
deleiiflant on 
(ft) Straftbrd .Love, 3 Dowl. 593. Ikngougli i'. Rossiter, 4 T. R. 505, a bail- bond. 

(c) Bac. ALr. tit. Slieriff (O) ; in K. B. ; affirmed in Exchequer 
Dalt. Sher. 356; Fitz. N. B. 251; Chamber, 2 H. Bl. 418. The sheriff 
Plowd. G7. is not liable to an action for not tak- 

(d) This was long considered to be ing a bail-bond on an aUacliment out 
a private, or as said by IMontague (in of Chancery; Studd v. Acton, 1 H. Bl. 
Plowden, 67) a private general act, 468. Nor is the sheriff prohibited 
but it is now holden to be a public from so doing by the statute; but a 
act, and need not be specially pleaded; bail-bond taken on an attachment is 
Samuel v. Evans, 2 T. H. 569. See 2;ood at the common law; fllorris v. 
also 15 East, 323. A sheriff has no Hayward, 2 iMarsh. 280; 6 Taunt, 
authority, either under this statute or 569, S. C. ; Rex v. Uawes, 1 Lord 
at common law, to fake a bond for the Raym. 722; 2 Salk 608, S. C. ; 
appearance of persons anested by him Lewi*: v. Morland, 2 Bar. & Aid. 56; 
under process issuing upon an indict- Sed vide 'i Pr\ce, 23; Com. Rep. 264; 
menl at the quarter sessions for a 2 Blac. Rep. 955; 2 Vent. 234, 238; 
misdeii eanor; but can only take a 2 Sir. 479; Cro. Car. 309; 3 Leon, 
recognizance for their appearance; 208. 



152 sheriff's duty on a bailable capias. 

cfiAP. VI. with sufficient sureties, and the under-sheriff refuse to discharge 
^^^'^' "' the defendant out of his custody, he is liable to an action on the 
case (e). For a refusal by the bailiff to discharge a defendant 
out of custody, on a tender to him of a bail-bond with sufficient 
sureties, the sheriff, and not the bailiff, is liable to an action (/ ). 
But in order to maintain such action, it must be alleged and 
proved that the sureties offered had sufficient within the county 
where the arrest was made (g) ; thus a declaration against the 
.sheriffs of London for not discharging the defendant on bail, in 
which it was alleged that the sureties tendered had sufficient 
" within the city of London and county of Middlesex," was held 
bad on demurrer, for it should have been alleged that they had 
sufficient in the city of London (A). But the statute neither 
prescribes any particular number of sureties, nor that each should 
be worth any particular sum (i) ; and therefore where a bond 
was tendered with five sureties, three of whom were proved 
to be worth more than the penalty in the bond, it was held 
that the sheriff was liable to an action for not discharging the 
defendant out of his custody (k), for if three were sufficient, it 
was quite immaterial what the others had. Although a sheriff 
is not obliged to take a bond with less than two sureties, 
yet a bond taken with only one surety is good(/); for this 
clause, which requires reasonable sureties, was introduced for 
the benefit of the sheriff; for the same reason it was resolved, 
that the bond was good, although the sureties had not sufficient, 
or did not reside within the county (tw), as the number or suffi- 

(e) Salmon ti. Peicival, do. Car. Drury's case, cit. 10 Rep. 100 b; but 

196; Sir W. Jones, 226, S. C. ; where the sherifi' has taken only one 

Smith V. Hall, 2 Mod. 31 ; 2 Vent. surety, the court will not set aside an 

96. attaclimenl legularly obtained against 

(/) Per Noith, C. J., 2 Mod. 32. tlie sheriff tor not bringing in the body; 

(g) Lovell V. Sheriffs of London, Rex u. Sherilis of London, 2 Bing. 

15 East, 320. And in such action 227 ; 9 Moore, 422, S. C. ; Reg. v. 

the plaintifF IS entitled to costs, under Sheriff of Middlesex, 7 Dowl. 313. 

the Statute of Gloster; C.'resswell v. But it will be otherwise if the appli- 

Houghton, 6 T. R. 355. cofion is made at the instance of the 

(h) Id. ibid. bail, R. v. Sheiill of Middlesex, 2 

(i) Cro. Jac. 286. Dowl. 140; or if the attachment has 

{k) Matson v. Booth, 5 Maule & been obtained for not returning the 

Sel. 223. Qiiere, would the sheriff writ, K. v. Sheriff of Surrey, 2 C. M. 

be liable if the aggregate amount of & K. 698. 

tlie property of the whole was suffi- (m) Cotton v. Wale, Cro. Eliz. 862 ; 

cient? Llackburn v, Michelbourn, Cro, Eliz. 

(/) Clyftoni;. Web, Cro. Eliz. 808; 852. 
Cotton V. Wale, ib. 862; Sir W. 



THE BAIL-BOND. 153 

ciency of the bail is not traversable in an action on a bail- f iiap. vr. 
bond(n). ^!^^"V_ 

The sheriff" may take a bail-bond from the defendant without When to be 
arresting him, for the words in the statute are sufficiently com- 
prehensive to apply to persons who have not been arrested, and 
it would be attended with mischievous consequences to hold 
bail-bonds to be illegal, taken civilly, without exposing the party 
to an arrest (o). Indeed, it has been holden that a bail-bond 
taken after the writ was issued, but before the delivery thereof 
to the sheriff, Avas good ( p). A bail-bond taken after the time 
limited for putting in special bail is bad(</), for the condition 
can only be for the defendant to put in bail according to the 
exigency of the writ ; consequently the bond should always be 
executed before or on the day limited for putting in special 
bail(r). A bail-bond executed in blank, before the condition is 
filled up, is void (s). 

By the second branch of this statute, which prescribes the The form of 

■, (, p , . , , . . 1 1 '''* aecnri(y. 

nature and torm or the security to be taken, it is enacted, " that 
no sheriff, &c., shall take any obligation for any cause aforesaid, 
or by colour of their office, but only to themselves, of any per- 
son, nor by any person, who shall be in their ward in course of 
law, but by name of their office, and upon condition written, 
that the prisoners shall appear at the day and place contained in 
the writ, bill, or warrant ; and if any sheriff, &c. take any obli- 
gation in other form, by colour of their office, it shall be void." 
The security must be by bond or ohligation under seal {t) ; 
therefore an agreement in writing, made by a third person with 
the sheriff's officer, to put in good bail for the defendant at the 
return of the writ, or surrender his body to the officer, or pay 
the debt and costs (m), has been holden void by the statute above 
mentioned, and an action will not lie on such agreement. And 
the courts will not grant an attachment against an attorney, on 

(»0 Bentley v. Hore, 1 Lev. 86; 569; Thompson t). Rock, 4 M. & Se!. 

1 Sid. 96, S. C. 338; Courtney v. Phillips, 1 Sid. 300. 

(o) VVatkins v. Parry, Str. 444; (r) Call r. Theiwell, IC. M.&R. 

flaley v. Fiizgerald, ?7;. 643. See 780; 3 Dowl. 443, 

Taylor v. Clow, 1 B. & Add. 223. (s) Pcvvell i;. Duff, 3 Camp. 181 ; 

Sed vide Noy, 43. see also Holden v. Raphael, 4 Ad. & 

(p) Say. Rep. 116; Bramfield v. E. 228 ; 5 N. & M. 655, S. C. 

Penhay, lKeb.554; 1 Sid. 151. But (t) 10 Rep. 101. 

see Hall i'. Roche, 8 T. R. 187. («) Roger u. Reeves, 1 T.R. 418; 

(q) Pullien v. Benson, I Lord Lewis d. Knight, 8 Bing. 271 ; 1 M. 

Raym. 349 ; Samuel v. Evans, 2 I". R . & Scott. 353, S. C. 



154- sheriff's duty ox a BAirABLB CAPIAS. 



cijAP. VI. his undertaking to the officer to give a bail-bond to the sheriff 
^'^^'"' in due time(a'), or for the appearance of the defendant(?/). But 
the statute only makes void securities to the sheriff or his officers 
in other form than that prescribed by the statute, but does not 
render void agreements or undertakings to the party himself, for 
the appearance of the defendant(s). 
Stamp. The bail-bond was formerly required to be on a half-crown 

stamp, but now a bail-bond no longer requires to be stamped (a). 
The amount By the Statute of 12 Geo. 1, c. 29, s. 2, it is enacted, " that the 
bond llloM sheriff or other officer to whom the writ or process is directed 
shall take bail for no more than the sum indorsed, on the back 
of such writ." Notwithstanding this statute, it is usual always 
to take the bond in double the sum indorsed on the back of the 
writ. The statute of 12 Geo. 1, c. 20, s. 2, is only directory, 
and a bail-bond taken for more than the sum indorsed on the 
writ, or taken where there is no affidavit of debt, is not therefore 
void (6). If the bail-bond be taken for a larger sum than the 
sum indorsed on the writ, the bail are liable to satisfy the whole 
debt due to the plaintiff, not exceeding the penalty of the 
bond(c). And where a bail-bond was taken for a larger amount 
than the sum sworn to, it was ordered to be set aside (d). 
To whom With regard to the form of the bond, in the first place, it is 

oniiVcon-' required that it be made to the sheriff by his name of office. And 
if, therefore, the bail-bond be made to the sheriff's officer (e;, or 
to the sheriff, but not by his name of office (/), it is void. In 
the next place, the condition of the bond must be for the de- 
fendant to put in special bail according to the exigency of the 
writ, and for no other purpose ; therefore, if the bond be single 
without any condition at all, or with an impossible condition, or 
the condition be not for the defendant's appearance, or be for 

(x) Sedgworth v. Spicer, 4 East, Prac. Reg. C. B. 67 ; Walker i;. Car- 

568; Lewis v. Knight, s»p. ter, 2 Bla. Rep. 816. 

(iv) Fuller v. Prest, 7 T. R. 109. (c) Mitchell v. Gibbons, 1 H. Bla. 

(z) Hall V. Carter, 2 i\lod. 304; 76. 

Milward v. Clerk, Cro. Eliz. 190; (d) Cock v. Cooper, 7 Ad. & E. 

Benson v. French, 1 Lev. 98; 1 Sid. 605. 

132, S. C. Per BulJer, J., 1 T. R. (e) Rogers ^^ Reeves, 1 T.R.418; 

422. And see Rushant v, Wate, T. Sedgworth v. Spicer, 4 East, 568. 

Jones, 139. (/)Giiybon u.Whitetost, Cro. Eliz. 

(a) 5 Geo. 4, c. 41. 800; Kiikebridgo v. Wilion, 2 Lev. 

{h) Whiskard v. Wilder, 1 Burr. 123; Cudwell r. Dunkin, T.Jones, 

331 ; Nordeni;. Horsley,2 Wils. 69; 137; Dyer, llDa, 119 b, 120 a j 

Cooke's Cas. Prac. 43 ; Fortes. 336; Symes v. Oakes, 2 Stra. 893. 



ditiun. 



THE BAIL-BOND. 155 

that and some thing else, it is void by the statute (^). But if chap, vi, 
the bond comply with these requisite formalities, the courts will ^'^^^' "' 
not avoid it for any informality in the descripton of the court, 
or cause of action, provided they are described with common 
certainty (h). Thus, where (before the 2 Will. 4, c. 39) the 
writ was for the defendant to appear, &c. " wheresoever our 
lord the king shall then be in England," a bail-bond conditioned 
to appear at Westminster was holden good; and in a similar case, 
where the condition of the bond omitted the words " where- 
soever, &c." the bond was holden good(«) ; and a bond condi- 
tioned to appear " in the office of Pleas in the Court of Exche- 
quer," was held sufficient, although the writ was to appear 
before the " Barons," &c. (k). So where the bail-bond did not 
follow the writ in stating that the defendant was to appear " ac- 
cording to the custom of the court," the bond was held good (/). 
But a bail-bond taken on a capias out of C. P. was held bad, 
where the condition was to appear before " the h'mg at West- 
minster (w)," for that must be intended the Court of King's 
Bench ; a bail-bond, taken on process out of K. B., conditioned 
to appear in his majesty s Court of the Bench at Westminster (n), 
was held bad, for that must be intended the Court of Common 
Pleas. A bond conditioned for the appearance of the defendant 
in eight days after the date, the arrest having been made on the 
same day, was held sufficient (o). As to the description of the 
cause of action, the following points have been determined. 
Where the writ was to answer the plaintiff in a plea of debt for 
three hundred and twenty pounds, or in a plea of trespass, with an 
ac etiam in debt, and the condition was to answer the plaintiff in 

(^) Giahamt).Crashaw,3Lev. 74; (i) Jones v. Sturdy, 9 East, 55. 

Dyer, 1 19, 120 ; 2 Saund. 69 b, n. And see Kirkebridge v. Curwen, T. 

If the objection to the bail bond ap- Jones, 46 ; 2 Lev. 180, S. C. ; Lawson 

pear on liie face of the declaration, or v. Haddock, 2 Vent. 237, 
upon oyer, the defendant may demur, (k) Shutlleworth v. Pilkington, 2 

but otherwise lie should plead such Stra. 1155. 
facts as show the bond to be void under (/) Case c\\. id. ibid. 

the statute ; and when, by pleading or (?«) Renalds v. Smith, 6 Taunt, 

otherwise, this appears on any part of 551 ; 2 Marsh. 258, S. C. 
the record, the defendant may move (n) Impey i'. Taylor, 3 M. & Sel. 

in arrest of juds^ment ; Samuel v. 166 ; see also Mill y. PoUon, 1 Moore, 

Kv:ui, 2 T. R. 5R9 ; 2 Saund. 59. 19 ; 7 Taunt. 271, S. C. 

(h) See Large i>. Atwood, I Dowl. (»; Evans r. Mosely, 2 C. & M. 

& Ky. 531 ; Atkinson v. Saundersoii, 490; 2 Dowl. 364, S. C. 
4 Dougl. 254. 



156 SHERlli'P's DUTY ON A HAIf-ABLK CAi'IAS. 



CHAP. VI. 
SECT. II. 



a plea of debt generally {p), or without mentioning the plea at 
all, the variances were liolden immaterial (</). And so where the 
writ was to answer the plaintiff in " a pica of trespass on the case 
upon promises, to the damago, &c." and the condition of the bond 
was to answer the plaintiff in a ^' plea of trespass, &c.," the court 
held the bail-bond good, for the statute does not recpiire that 
the bond should disclose the nature of the action (r). The 
omission of the defendant's name in the recital and operative 
part of tiie condition was held to vitiate the bond (s). 
How pre- The sheriff's officer, in whose custody the defendant is, or 

&c. ' ' by whom he has been arrested, upon being furnished with the 
names of the defendant's sureties, and having satisfied himself of 
their sufficiency, will prepare the bond immediately. It is the 
sheriff's duty to prepare it ; and therefore, to an action for 
refusing to take bail, it would be no answer for the sheriff to 
say that the party did not tender a bail-bond (^). It seems, 
however, that the sheriff is entitled to be paid for such bond by 
the party arrested («). As to the amount which he is entitled 
to charge, see ante, pp. 100, 102. 
When tije When the bail-bond is executed, or a deposit duly made in 

d'isVh^rgeThe ^^^^ ^f bail, or the sheriff's officer in whose custody the defend- 
ant is has received a written authority from the plaintiff to dis- 
charge him (a:), search having been first made at the sheriff's 
office to see that there are no detainers against the defendant, 
he should be discharged out of custody upon payment of his 
fees, the costs of the bail-bond, &c. So also the defendant is 
entitled to his discharge when the debt and costs in the action 
have been paid to the plaintiff, no matter by whom (y). The 
sheriff is allowed a reasonable time to search for detainers (z) ; 

(p) Villieis V. Hastings. Cro. Jac. the plaintiff." And see Huckett v, 

286; Kirkebridge v. Wilson, 2 Lev. PJummer, 5 Moore, 538, nrc. 

123. (s) Holden r. Raphael, 4 Ad.& K. 

((/) Gardiner v- Dudgate, 2 Shov.. 228; 5 i\. 6c M. 655, S. C. 

51; Cudvvell t\ Dunkin, '1'. Jones, (t) Milne v. Wood, 5 C. & P. 

137; Gio'enoru. Soame,6 .Vlod. 122. 5B7. 

(r) Owen V. Nail, 6 T. U 702. (it) Ibid. 

In the ease of Kench v. Britton, 10 (i) Martin v. Francis, 2 B. & Aid. 

Mod. 327, Parker, C J., is reported 402. 

to have said, " that the statute only (y) Rimmer v. Turner, 3 Dowl. 

requires that the iilienff should 'ake a GOl. 

bond conditioned for the appearance (z) Taylor v. Drander, 1 Esp. 45; 

of the parly on such a day at West- see Samuel v. Buller, I Exch. R. 
minster ; it does not say even to answer 



defendant. 



THE BAIL-BOND. 



157 



and he is not obliged to discharge a defendant on giving a bail- 
bond, without being paid his fees («). Although, however, the 
sheriff may detain the defendant for his fees, the plaintiff's 
attorney has no lien on the body of a defendant for his costs; 
and therefore a sheriff was held justified in discharging a de- 
fendant out of his custody upon the authority of the plaintiff, 
although his attorney had given him notice not to discharge him 
until he was satisfied his costs (6), 



CHAP. VI. 
SECT. II. 



Section III. 
Of the Assignment of the Bail-Bond. 

The sheriff, before the statute of 4 Anne, c. 16, was not com- 
pellable to assign a bail-bond (c) taken by him on an arrest, 
although for refusing to assign it the courts would have amerced 
the sheriff(rf) ; and according to the old practice, the bail-bond 
was never assigned until the sheriff had been ruled to bring in 
the body (c). And even after the sheriff had assigned the bond, 
the action still must have been brought in the name of the 
sheriff, and of course the sheriff might have released the action. 
But those inconveniences were remedied by the 20th section of 
the statute 4 Anne, c. 16, s. 20 (/), whereby it is enacted, that 



Sheriff 
obliged (0 
assign the 
bail-bund. 



(a) Chit. Archb. 543, 7th ed. ; 
Milne v. Wood, iibi sup. 

(b) Mania v. Francis, 2 Bar. & 
Aid. 402. 

(c) 1 Mod. 288. 
((/) 2 Mod. 84. 

(e) Eiherick t). Cowper, 1 Snlk. 99. 

(f) 'Jhe act provides, " that if any 
person shall be arrested by any writ, 
bill, or process, issuing out of any of 
the courts of record at Westminster 
at the suit of any common person. 
and the sheriff or other officer takcth 
bail frum such person against whom 
such writ, bill, or process is taken out, 
the sheriff or oilier officer, at the re- 
quest and costs of the plaintiff in such 
action or suit, or his lawful attorney, 
shall assign to the plaintiff' in such 
action the bail-bond, or other security , 
taken from such i)ail, bv indorsing the 
same, and attesting it under his hand 
and seal, in the presence of two or 
more credible witnesses, which may 
be done without any stamp, provided 



the assignment so indorsed be duly 
stamped bt-foie any action be brought 
thereon ; and 'f the said bail-bond of 
assignment, or other security takea 
for bail, be forfeited, the plaintiff in 
such action, after such assignment 
made, may bring an action and suit 
thereuuon in his own name, and the 
court where the action is brought may 
by rule or rules of the same com I give 
such relief to the plaintiff and defend- 
ant in the oiiginal action, and to the 
bail upon the said bond or other secu- 
rity taken from such bail, as is aiiree- 
able to justice and reason, and that 
such rule or rules of the said court 
shall have the nature and effect of a 
defeazance to such bail bond or other 
security for bail." This statute does 
not authorize the assignment of a bail- 
bund given by a party attached for 
contempt for not putting in an answer 
in chancery; Meller v. Palt'reyman, 
4 B. & Ad. 146. 



158 sheriff's duty on a bailaisi,!, capias. 

CHAP. VI. where a defendant sliall bo arrested, and the sheriff takes a bail- 
^sECT^m. IjojjjJ^ the sheriff' shall, v.i the request and costs of the plaintiff 
or his attorney, assign to the plaintiff such bail-bond, by indorsing 
the same, and attesting it under his luind and seal, in the pre- 
sence of two or more credible witnesses, which may be done 
without any stamp, provided such assignment be afterwards 
duly stamped before any action be brought thereon. If, upon 
request of the plaintiff, the sheriff refuse to assign the bail-bond, 
he is liable to an action on the case [g). 
At what time The plaintiff" cannot take an assignment of the bail-bond after 
Inay^ake'ihe service of the rule of allowance of bail (h). Nor could he 
assignment, formerly have taken an assignment of the bail-bond, if the de- 
fendant had rendered before the return of the writ(i); but since 
the Uniformity of Process Act, 2 Will. 4, c. 39, it is otherwise, 
unless the defendant has put in special bail according to the 
exigency of the writ, /, c. within eight days after the arrest (A:). 
If the plaintiff" elect first to proceed against the sheriff, he cannot 
afterwards bring an action on the bond, pending the rule to bring 
in the body (/). 

Properly speaking, the plaintiff cannot take an assignment of 
the bail-bond before it is forfeited (???), viz., if the defendant do 
not put in bail in due time, and perfect them if excepted to, or 
do not perfect bail if put in after the time appointed ; although 
it has been said that the plaintiff may take an assignment before 
it is forfeited (?i). The assigimaent must be made whilst the 
original cause is pending in court (o). By Reg. Gen. Hil. 2 

(g) Stamper v. Milbourne, 7 T. II. (h) Hodgson v. Mee, 3 Ad. & E. 

122; Mendez v. Bridges, 5 Taunl. 765; 5 N. & M. 302, S. C. 

325. (/) Reg. Gen. H. 2 VV. 4. r. 23. 

(/i) 1 Esp. 87; Short v. Doyle, 4 See Wliiule v. Oldacre, 7 B. & C. 

Dowl. 202. But until the service of 478; Blackford v. Hawkins, 1 Biug. 

the rule for the allowance of bail, the 181. 

plainlif}" is entitled to take an assign- (»)) Dent v. Weston, 8 T. R. 4. 

nienl of the bail-bond; HolLind v. (n) Barnes, 77. 

White, 2 Bos. & Pul. 341 ; Rex v. (o) Sparrow v. Naylor, 2 Black. 

Sheriff of Middlesex, 4 T. R. 493. Rep. 876. The plaintiff may commence 

See also 1 Taunt. 119; Ellis i'. Bates, his action on the bail-bond at any 

2 C. & iM. 143. tio^e after the cause is out of court, 

(i) Jones t). Lander, 6 T. R. 753 ; provided the bond was assigned in 

Stamper v. Milbourne. 7 T, R. 122 ; time ; Pi'^'ott v. Truste, 3 Bo=. & Pul. 

Hyde v. Whiskard, 8 T. R. 456; 221; CoUeU i'. Bland, 4 Taunt. 715. 

Plimpton V. Howell, 10 East, 100; If there has been laches on the part of 

And see Lewis v. Oavis, 5 Moore, 267 ; the plaintilf, the court, in the exercise 

Maddocks V. Dullock, 1 Bos, 6i I'ul. of its equitable jurisdiction, will grant 

325. itlitl'j 3 boa.ik Pul. 222. 



ASSIGNMENT OF THE BAir>-BOND. 159 

Will. 4, r. 35, the plaintiff is out of court, unless lie declare chap. vr. 
within one year after the process is returnable, which would "''-ct. iii. 
now be construed to mean after the service or execution of the 
process. 

The assignment may be made by the high sheriff, or by the By whom and 
under-sheriff (2:>), or his clerk (r/), in the high sheriff's name. 
The assignment must be made by indorsement on the back of 
the bond, under the hand and seal of the sheriff, and made in 
the presence of two or more credible witnesses (?•). Credible 
here means disinterested ; therefore an attestation by the plaintiff 
in the action and another person renders the assignment inva- 
lid («). The bail-bond may be assigned, and an action brought 
on it in any county (^;. The usual fee paid to the under-sheriff 
for assigning a bail-bond in London and Middlesex is 5s. ; in 
any other county 6s. 8d. (n). 

By taking an assignment of a valid bail-bond, the sheriff is The effect of 
discharged, for the plaintifi" cannot, after taking an assignment ment. " 
of the bail-bond, rule the sheriff to return the vvrit(x); but if 
the bail-bond be not valid, the plaintiff may still proceed against 
the sheriff (?/). Formerly, in the Queen's Bench, after taking 
an assignment of the bail-bond, if the bail to the sheriff become 
bail above, the plaintiff could not except to them, for the ac- 
ceptance of the assignment was an admission of the sufficiency 
of the bail(s;); but the bail must justify, if they were excepted 
to be/ore the plaintiff took the assignment (a). But in the 
Common Pleas, if the bail to the sheriff became bail to the 

(])) Kilson V. Fagg, 1 Stra. 60^ 10 London, at the secondary's office, 28, 

Mod. 288, S. C. Coleman Street; or if in any other 

(ij) Doe n. Brawn, 5 Bar. & Aid. county, at tlieolfice of the undersherilF, 

243 ; Middleton v. Sandford, 4 Camp. or of his agent in town, and the bond, 

36; Harris u. Aslily, Sit. JMidd. in 30 wilh an assignment to the plaintift' 

Geo. 2 ; French v. Arnold, T. 5 Geo. indorsed on it, will be given to the 

3, cit. Tidd's Prac. 301, 3th edit. plaintiff'; Chit. Archbold's Frac. 559, 

(j) See Stat. 4 Ann. c. 16, s. 20. 7ih edit. 
The witnesses need not subscribe their (u) Chit. Archb. 559, 7th edit. 

names in the presence of the officer (.i) Kllierickt'. Cooper, 1 Salk. 99; 

assigning; Phillips y. Batlow, 1 Bing, Lord Brooke v. Stone, 1 VVils. 223. 
N. C. 433 ; 1 Scott, 322, S. C. (,/) Id. ibid. 

is) While V. Barrack, 2 M. & W. (z) Anon, 1 Salk. 97; Fish i;. Hor- 

425. ncr, 7 IVlod. 62 ; How v. Granville, 7 

(t) Gregson I'. Heather, Stra. 727 ; ]\Jod. 117; Grovenor i'. Soame, 6 

2 Lord Raym. 1455, S. C. If tiie Mod. 122. 

bail-bond be taken in Middlesex, ap- (a) Hill v. Jones, 11 East, 321 ; 

plication should be made at tiie she- Edmond v. Ross, 9 Price, 5. 
riff's office in Red Lion Square ; if in 



160 sheriff's duty on a BAlLABLi: CAPIAS. 

CHAP. vr. action, tlie plaintiff miglit except to tliem, notwithstanding he 
srcT. i n. jj^j taken an assignnnent of the bail-bond (6). And now, by 
Reg. Gen. Hil. 2 Will. 4, r. 15, the latter practice is extended 
to all the courts. Before the 1 & 2 Vict. c. 110, the plaintiff 
was not at liberty to proceed in the original action so long as he 
retained his right to sue on the bail-bond (c) ; but now, the 
capias being wholly collateral, the taking an assignment of the 
bail-bond no longer affects the right of the plaintiff to proceed 
in the original action (d). 
Action on ihe The sheriff, if he has been obliged to pay the debt and costs 
whom^and ^ upon an attachment, may pitt the bond in force to reimburse 
brougbt. himself; and the plaintiff also, after an assignment made to him, 

if the defendant has not complied with the condition of the bond, 
may bring his action thereon (e) ; and this, though he have be- 
come bankrupt (/'). The plaintiff cannot, however, in any case 
sue on the bond before forfeiture ; if he does, it w ill be a good 
ground for setting aside the writ in the action on the bond, or 
the nonforfeiture may be pleaded in bar(^). Before the rules of 
Hil. T. 2 Will. 4, in the Queen's Bench, the action could not be 
commenced until four days after the return of the writ, if the 
arrest were in London or Middlesex, or until six days if in any 
other county, the fourth and sixth day being reckoned exclu- 
sive (/«). In the Common Pleas, a bail-bond taken in London or 
Middlesex, on process returnable on the first return of any 
term, could not be put in suit until the fifth day in term, and in 
any other county until the ninth day in full terra ; and on process 
returnable on any other return day but the first, if the arrest 
were in London or Middlesex, the bail-bond could not be put 
in suit until four days exclusive, if in any other county until 
eight days exclusive, after the return day of the process (i). 
But by Reg. Gen. Hil. 2 Will. 4, c. 24, it was ordered that no 
bail-bond taken in London or Middlesex should be put in suit 
until after the expiration of four days, nor if taken elsewhere 
till after the expiration of eight days exclusive, from the ap- 

(6) R. M. 6 Geo. 2. C. P., Bough- (e) 4 Ann. c. 16, s. 20. 

ton f. Cliaffey, 2 Wils. 6. (/) .Anon. T. T. 1831, K. B., 

(r) Collet i. Bland, 4 Taunt. 715; Chit. Archb 560, 7tli ed. 

Pigott I'.Trusle, 3 Bos. & Pu!.221. (;;) Edwards r. Danks, 4Dowl. 357. 

(d) Belts ! . Smyth, 2 Q. 13. 1 13 ; (h / R. iM. 8 Ann. s. 6, K. B. 

2 G. & D. 1 13, S. C. ; Keg. v. Sheriff (i) R. T, 30 Geo. 3, C. P., 1 H. 

of Montgomeryshire, 9 M. & W. 448; Black. 525, 526. See a former rule, 

Ede V. Collingridge, 1 1 M. & W. Gl. 2 Blac. Rep. 1009. 



ASSIGNMENT OF THE BAIL-BOND. 161 

pearance day of the process. This rule, however, was super- chap. vi. 
seded by the Uniformity of Process Act, 2 Will. 4, c. 39, the ^ "^^^^ "'• 
schedule to which gave the form of the writ of capias, in which 
the defendant was required to take notice " that within eight 
days after execution thereof on him, inclusive of the day of such 
execution, he shall cause special bail to be put in for him to the 
action, and that in default of his so doing, such proceedings 
might be had and taken as are mentioned in the warning here- 
under written ;" and the warning states that " if the defendant, 
having given bail on the arrest, shall omit to put in special bail 
as required, the plaintiff may proceed against the sheriff as on 
the bail-bond (j)," And inasmuch as the form of the capias 
given by the 1 & 2 Vict. c. 110, is in this respect the same, and 
the same warning is to be subscribed to it, it follows that if a 
defendant held to bail on a cajnas under that statute do not put 
in special bail within eight days after execution of the process 
upon him, including the day of such execution, the plaintiff, 
immediately on the expiration of that time, may put the bail- 
bond in suit ; even though the defendant, after the expiration of 
the eight days, renders himself to the sheriff (^). 

The plaintiff may proceed on the bail-bond, unless the bail 
be justified, although not excepted to, if the bail have not been 
put in in time (l). The plaintiff may treat bail to the action, who 
are insufficient by the practice of the court, as a nullity, and 
proceed on the bail-bond as soon as the time for putting in bail 
has expired, unless good bail be duly put in in the meantime (m). 
Where the plaintiff, with the consent of the bail to the sheriff, 
took from the defendant a cognovit with a stay of execution for 
a month, it was held that, although the bail continued liable 
notwithstanding the cognovit, they could not be sued on the 
bail-bond until they received notice that the cognovit was unsa- 
tisfied (n). 

(j) Hillary r. Rowles, 5 B. & Ad. East, 180 ; Thomson v. Roubell, Doug. 

460. 466, n. (1). The practice was other- 

(k) See Hodgson v. Mee, 3 Ad. & wise in C, P. ; Fenton v. Ruggles, 1 

E. 765 ; 5 N. 6c M. 302, S, C. Bos. & Pul. 356 ; Wallace v. Arrow- 

(/) Turner v. Gary, 7 East, 607. smith, 2 Bos. & Pul. 49. 

(m) Reg. Gen. Hil.2Will.4, r. 13. (n) Clift v. Gye, 9 B. & C. 422; 

Before this rule, in K. B., the plaintiff see also Woosnam v. Price, 1 C. & M. 

could not treat such bail as a nullity, 352 ; Suvman v. Bruce, 10 Bing. 444 ; 

but was bound to except to them as if 4 ]\I. &: Scott, 184. 
regular; Rex v. Sheriff of Surry, 2 



162 SHERIFF S DUTY ON A BAILABLE CAPIAS. 



CHAP. VI. Where the action is by the plaintiff' as assignee of the sheriff', 
by the practice of all the courts, it must be brought in the same 



SECT. III. 



In What court court where the orignial action was brought; otherwise the 

an action on . i- r> ■ i i i i / \ T 

a bail-bond parties couUl not have the rehei intenueu by the statute (o). In 
brmight. the Courts of Common Pleas (^>) and Exchequer ((/), where the 

action on the bail-bond is brought by the sheriff', the sheriff' has 
been allowed to bring actions on bail-bonds taken on process 
issuing out of another court. In the Queen's Bench the sheriff" 
could not sue on a bail-bond taken on process issuing out of 
another court (r). But now, when brought by the sheriff', the 
action may be in any court (s). The bringing an action in a 
different court from that in which the original action was com- 
menced is only an irregularity, of which advantage must be 
taken by special application to the court where the action on 
the bail-bond is pending ; but this irregularity is no objection 
on the plea of non est factum (t). The venue in an action on a 
bail-bond may be laid in any county (ti). 
Parties can- In an action on the bail-bond, whether brought by the sherifT 
to° bai*i ^n'an" OY by his assignee, neither the defendant nor his sureties could 
bail-bond.* ^v^^' ^^ holden to bail(a;). But if either the sheriff" or his assignee 
recover judgment on the bail-bond, the defendants may be holden 
to bail on that judgment (?/). 
The deciara- Where the action is by the sheriff" himself, the bond is usually 
declared on as a common money bond, without setting out the 
condition. Where the action is by the assignee, it is not neces- 
sary to make profert of the assignment (s) ; it is sufficient to 
allege that the sheriff" assigned the bond according to the form 
of the statute, and it need not be stated that the assignment 
was under his hand and seal (a). Neither need the names of the 
attesting witnesses be stated, nor need it even be alleged that 
the assignment was made in the presence of two witnesses, as 

(-0 Mellor V. Palfreyraan, 1 N. & 396 ; Reg. Gen. H. T. 4 Will. 4, 

M. 696. (u) Giegson v. Heather, Stra. 727 ; 

(p) Morris v. Kees, 3 Wils. 348 ; 2 Lord Raym. 1455, S. C. 

2 Blac. Rep. 838, S. C. ; Chesterton (.t) Brander v. Robson, 6 T. R. 

V. Middlehurst, 1 Burr. 642 ; Walton 336 ; Mellish and another i'. Pethe- 

V. Bent, 3 Burr. 1923 ; Newman v. rick, 8 T. R. 450. 

Faucitt, 1 H, Blac. 631. (y) Prendergast v. Davis, 8 T. R. 

(q) Yorke v. Ogden, 8 Price, 174. 85. 

(>•) Donatty v. Barclay. 8 T. R. (s) Leafev. Box, 1 Wils. 121. 

152. (a) Dawes v, Papworth, Willes, 

(s)Reg. Gen. Hil. 2Will.4, r.28. 458. 

(t) Wright V, Walmsley, 2 Camp. 



tion 



ASSIGNMENT OF THE BAIL-BOND. 163 

required by the statute (b) : tliough the declaration would be chap. vr. 

bad, if on the face of it it appeared that the assignment was not '- — '-- 

according to the statute (c). Neither is it necessary to aver in 
the declaration, that the defendant in the original action was 
arrested, and such an averment, if made, would not be tra- 
versable (tZ). Neither need it be averred that the writ was 
issued on an affidavit of debt, and indorsed with the sum sworn 
to (e). 

If the defendant do not justify his bail in due time, and com- Pleadings. 
peruit ad diem be pleaded to a declaration on the bail-bond, the 
court will order the appearance of the defendant to be recorded 
as of the day on which the bail justified (/). And if bail above 
be justified before the expiration of the rule to bring in the body, 
the bail below might, before the abolition of the doctrine of re- 
lation to the first day of term, in an action on the bond, plead 
comperuit ad diem, and that plea was satisfied by the production 
of the recognizance roll, containing an entry of the defendant's 
appearance generally ; and such roll might be made up at any 
day before the day given for producing it (^o-) ; or, instead of so 
pleading, the defendant in the action on the bond might, it 
would seem, apply to the court or a judge to stay the proceed- 
ings on it. But now, perhaps, as the doctrine of relation is 
abolished, and the recognizance roll does not enter the appear- 
ance generally, this plea could not be successfully adopted, 
though the defendant may still obtain a stay of the proceed- 
ings {h). 

The bail to the sheriff are liable to satisfy the whole debt due Extent of 
to the plaintiff, to the full extent of the penalty of the bond, 'the''baii-''" 
though beyond the sum sworn to, and costs (i). Where several ''""''■ 
actions were brought on a bail-bond against the defendant and 

(6) Robinson v. Taylor, Fortesc. 332 ; 1 Dowl. 660, S. C. ; Knowles 

366; Leafe v. Box, 1 VVils. 121 ; v. Stevens, 1 C. M. & R. 26. 
Lewis V. Parkes, 3 M. & W. 133 ; (/) Ladd v. Arnaboldi, 1 C. & J. 

6 Dowl. 93, S. C, nom. Lewis v. 97. 
Parker. (g) Whittle v. Oldaker, 7 B. & C. 

(c) Neott V. Mills, Fortesc. 371. 478 ; 1 M. & R. 298, S. C. 

(d) Taylor v. Clow, 1 B. & Adol. (h) Chit. Archb. 561, 7th edit. 
223. See also Call v. Thelwell, 3 (j) Stevenson d. Cameron, 8 T. R. 
Dowl. 443; Watkins v. Parry, Stia. 29; Mitchel v. Gibbons, 1 H. Bla. 
444; Haley v. Fitzgerald, ib. 643; 76; Orton v. Vincent, Cowp. 71; 
ante, p. 153. Miffin v. Morgan, 2 Ld. Raym. 1564 ; 

(e) Sharpe v. Abbey, 5 Bing. 193. and see 7 T. R. 370; 3 East, 604. 
See Hume v, Liversedge, 1 C. & M. 



stayed. 



104' SIIF.RIFr's DUTY ON A BAII.ARLF, CAPIAS. 

CHAP. VI. his sureties, tlic court stayed the proceedings on tlie payment 

'—IL- of the costs of one action only, the bringing several actions being 

considered oppressive (d). And now, by Reg. Gen. Hil. 2 Will. 
4, r. .'30, proceedings on the bail-bond may be stayed on pay- 
ment of costs in one action, unless sufficient reason be shown 
for proceeding in more. Rut such an application must be made 
promptly, and is too late after the several actions have proceeded 
to verdict (e). Unless, however, all the obligors in the bail-bond 
are sued jointly, they, or such of them as the plaintiff chooses to 
sue, should be sued separately ; for if two out of three were to 
be sued jointly, although it would not be any irregularity {/), 
still it would be ground for a plea in abatement for nonjoinder. 
When and on The courts wiU in many cases, where the iustice of the case 

what lerins . . . . . 

proceedings requires it, set aside proceedings on the bail-bond. Thus, if the 
bond will be plaintiff die after the arrest and before the return of the writ, 
the court will set aside proceedings (g). And where the de- 
fendant dies before the plaintiflf could have had judgment against 
him, if there had been no delay in putting in and perfecting bail, 
the court will stay proceedings on the bail-bond, upon payment 
of costs only (A); but where the plaintiff might have had judg- 
ment against the defendant, if bail above had been put in and 
perfected in time, the bail to the sheriff are liable for the whole 
debt and costs, and the court will not relieve them («). Where 
the defendant becomes bankrupt after he has given a bail-bond, 
the bail may be relieved on motion, if the defendant has ob- 
tained his certificate before they are fixed {k) ; but if he do not 
obtain his certificate until afterwards, they remain liable (^). 
Where a bankrupt obtained his certificate under a third com- 
mission, the Court refused to cancel a bail-bond given upon 
arrest for a debt proveable under that commission, he not having 
paid fifteen shillings in the pound under either of the former 
commissions {m). 

id) Key v. Hill, 2 B. & Aid. 598; Morly v. Carr, Barnes, 112. 
1 Chit. Rep. 337, S. C, Abbott, C. J., (/c) Sanders v. Spincks, Barnes, 

disseiiliente. 105. 

(e) Johnson v. Macdonald, 2 (I) VVoUey d. Cobbe, 1 Burr. 244; 
Dowl. 44. 1 Ld. Ken. 504, S. C. ; Cockeril! v. 

(f) Knowles v. Johnson, 2 Dowl. Owston, ih. 436; see also Coulson v. 
653. Hammond, 4 Dowl. & Ry. 160; 2 

(g) Hutchinson v. Smith, 8 Mod. Bar. & Cress. 626, S. C; Streeter j;. 
240 ; Chit. Archb. 568, 7th edit. Scott, 2 Dowl. 362. 

(/() Castell V. Grave, Barnes, 99. (m) Summers v. Jones, 6 Dowl, 

(i) Orton V. Vincent, Cowp. 71 ; 139. 
Evening v. Spearman, Barnes, 99 ; 



ASSIGNMENT OF Tllli BAIL-BOND. 165 

If the plaintiff" has been guilty of laches («), or has taken a <;hap. 



cognovit for the debt unknown to the sureties (o), the court will 
stay proceedings on the bail-bond. And where the plaintiff, 
with the consent of the bail, took a cognovit with a stay of exe- 
cution for a month, it was held that although, the debt being 
unpaid, the bail continued liable, yet the plaintiff" could not 
proceed against them without first giving them notice that the 
cognovit was unsatisfied (p). 

But after the bond has been forfeited and assigned, the bail 
will not be discharged by time being given to their principal, 
even without their consent ((^). If one of the bail to the sheriff" 
consents to time being given to the principal, such consent is 
binding upon both (r). 

If proceedings are taken on the bail-bond contrary to good 
faith, they will be set aside with costs («). So where the pro- 
ceedings in the action are irregular, or where the defendant 
ought not to have been holden to bail (t), or the defendant has 
been nnisnamed in the writ (ii), the court will set aside the bail' 
bond, although in the last case the defendant has signed the bail- 
bond with his initials, which correspond with the name in the 
writ (a;). The affidavit in support of a rule to set aside a bail- 
bond for this defect must be intituled with the right name of 
the party, and not with the name by which he was arrested (y). 
Formerly, also, before the Uniformity of Process Act, if, on or 
before the return day of the writ, the defendant had rendered 
himself to the sheriff", or had put in bail and rendered in dis- 

(n) Pigott V. Truste, 3 B. & P. 734; Yeates v. Chapman, 3 Bing. 

221 ; Merryman v. Carpenter, 2 Slra. N, C. 264, Tindal, C. J. 

1262 ; Hutchinson v. Hardcastle, (0 1 Stra. 399. See Yeates v. 

Barnes. 103. Chapman, 3 Bing. N. C. 262. 

(o) Farmer v. Thorley, 4 Ear. & (u) See Finch v. Cocker, 3 Dowl. 

Aid. 91 ; otherwise, if at the instance G78. 

of one of the bail, Rex v. Sheriff of (x) Coles i'. Gunn, 1 Bing. 424; 

Middlesex, I Dowl. & Ry. 388. Johnson v. Cooper, 5 Rloore, 472; 

( p) CJifl V. G ye, 9 B. & C, 422 ; Smith v. Innes, 4 iAI. & Sel. 360 ; Tay- 

4 M.& Sc. 184; 2 Dowl. 777,S.C. ; lor v. Butlernam, 6 Moore, 264. 

and see also Surman v. Bruce, 10 But the court of C. P. have declared 

Bing. 434; Charelton v. Morris, 6 that they will not for the future set 

Bing. 427. aside bail-bonds, where the defendant 

(q) Woosnam v. Price, 1 C. & M. is sued by the initials of his Christian 

852. name only; Lake v. Silk, 3 Bing. 

(r) Howards. Bradberry, 3 Dowl. 296; Kitching?;. Alder, 1 Chit. Rep. 

92. See also Rex v. The Sheriff' of 282. 

Middlesex, 1 Dowl. & R. 388. {y) Finch t>. Cocker, 2 Dowl. 383. 

(s) Sweeting v. Weaver, 1 1 Price, 



SECT. III. 



166 sheuivf's dxjty on a bailable capias. 

CHAP. VI, charge, the court would stay proceedings on the bail-bond (;:;). 
' But since that act, a render to the sheriff" would not be a ground 

for staying the proceedings, unless the defendant has put in 
special bail according to the exigency of the writ (a). If the 
defendant render himself, or is rendered in discharge of his bail, 
after the return of the writ, or even after the time for justifi- 
cation of the bail has expired, the court will stay proceedings on 
the bail-bond on payment of costs (6). By Reg. Gen. H. T. 
2 Will. 4, r. 23, a plaintiff" shall not be at liberty to proceed on 
the bail-bond pending a rule to bring in the body. 

Moreover, if the proceedings be regular, the court will, on 
the defendant's justifying bail above, stay proceedings on the 
bail-bond, either on the application of the defendant or of his 
bail (c). By a rule in the Queen's Bench, " no rule shall be 
drawn up to stay proceedings regularly commenced on the as- 
signment of a bail-bond, unless application for such rule shall, 
if made on the part of the defendant, be grounded on an affi- 
davit of merits ; or if made on the part of the bail, at their own 
expense, and for their own indemnity, and without collusion 
with the defendant (c?)." A similar rule now exists in the Ex- 
chequer (e), and it is adopted also in the Common Pleas (/). 
The courts, however, impose terms upon the defendant or his 
bail, in setting aside proceedings. The terms used to be these ; 
if the plaintiff" had not lost a trial, the proceedings were stayed 
on payment of costs incurred upon the bail-bond, perfecting bail 
in the original action, and if necessary, that the defendant should 
receive a declaration, plead issuably, and take short notice of 
trial ; but if the plaintiff" had lost a trial, the bail-bond should 

(z) Jones V. Lander, 6 T. R. 753 ; edit. 

Stamper d. Milbourne, 7 T. K. 122; (rf) Reg. Gen. K. B., M. T. 59 

Harding v. Hennem, 3 Bos. & Pul. Geo. 3, 2 B. & Aid. 240; 1 Chit. 

232; Hydet).Whisiiard,8T. R.456; Rep. 127, n. (a). See Grottick v. 

Pimpton V. Howell, 10 East, 100; Bailey, 5 Bar. & Aid. 703; for the 

Hamilton v. Wilson, 1 East, 383; practice in C. P. see 1 N. R. 123 ; in 

Maddocks v. Bullock, 1 Bos, & Pul. Exchequer, see 1 M'Cleland, 44; 2 

325; Lewis?;. Davis, 5 Moore, 267. C. &c J. 671. 

(a) Hodgson V. Mee, 3 Ad. & E. (e) Keg. Gen. H. T. 7 Will. 4, 

765 ; 5 Nev. & M. 303, S. C. 5 Dowl. 446. See Call v. Thelwell, 

(h) Rex V. Sheriff of Middlesex, 7 3 Dowl. 444 ; R. i;. Sheriff of Surrey, 

T. R. 529; Edwin v. Allen, 5 T. R. id. 174. 

401 ; Meysey v. Carnell, ib. 534; (/) Rex «. Sheriffs of London, 1 

Seaver v. Spraagon, 2 N. R. 85. M. & P. 177 ; 4 Bing. 427, S. C. ; 

(c) 1 Chit. "Archb. Prac. 569, 7ih Chit. Arch. 570, 7th ed. 



ASSIGNMENT OF THE BAIL-BOND. 167 

then remain as a security for the debt and costs in the original chap. m. 
action, if the plaintiff" should have a verdict (g). And by Reg. ^'^'^'^' "'* 
Gen. H. T. 2 Will. 4, r. 29, in all cases where the bail-bond 
was directed to stand as a security, the plaintiff might sign judg- 
ment upon it. 

Since the 1 & 2 Vict, c, 110, the capias being a mere col- 
lateral proceeding, it seems that the court will in all cases stay 
the proceedings on putting in and perfecting bail, or payment 
into court in lieu of bail, or render and payment of costs (/«); 
for since that statute there is no impediment to the plaintiff"'s 
proceeding against the defendant, whether bail above be put in 
or not (/"). Where the application is by the bail, no terms can 
be imposed on the defendant (k). 

Proceedings may be stayed, either for irregularity, or by 
putting in bail where the proceedings are regular, by application 
to the court in term time, or to a judge in vacation (/), The 
affidavits, summons, and orders must be intituled in the original 
action (?7i), excepting where the irregularity is in the process in 
the action on the bail-bond, and then it should be intituled in 
the action on the bail-bond, and not in the original action («). 



Section IV. 
Rule to return the Writ. 

Where the plaintiff" is dissatisfied with the bail to the sheriff", Ri,ie to re- 
he can only proceed against the sheriff", if the defendant do not '""' '''^ "'"* 
put in bail, or render himself in due time. The object of ruling 
the sheriff" to return the writ is either to compel the defendant 
to put in bail, or, if bail be already put in, to compel them 
to justify at the same time as the plaintiff" excepts to the bail, 
and gives notice of exception. The plaintiff" should not be guilty 

(g) 1 Archbold's Prac. 100, 2d ed. ( k) Call v. Thelwell, 3 Dowl. 445 ; 

And see post, as to setting aside an at- 1 (J. JM. & R. 780, S. C. 

tachmenl obtained against the sheriff. (I) Chit. Archb. 565, 7th ed. 

(h) Chit. Arch. 569, 7th ed. (m) 4 T. R. 688; 8 T. R. 456; 3 

(0 Belts V. Smyth, 2 Q. B. 113. Bos. & Pul. 118. 

See also Reg. v. Sheriff of Montgo- (n) Willes, 461 ; 1 Bos. & Pul. 

meryshire, 1 Dowl. N. S. 388 ; Ede 337 ; Stride v. Hill, 1 M. & VV. 37, 

V. Collingridge, 11 M. & VV. 61. per Parke, B. 



168 



SHERIFFS DUTY ON -A BAILABLE CAl'lAS. 



cuAr. V], 

SECT. IV. 



Non est 
inventus 



of any delay in ruling the sheriff' to return the writ ; for if the 
party has been guilty of any laches, the court will not interfere 
to compel the sheriff" to put in bail, particularly if by such delay 
the sheriff would be placed in a worse situation than he would 
have been if he had been ruled to return the writ in the first 
instance. 

When the sheriff" may be ruled to return the writ, and when 
not, and when and how the courts will grant an attachment 
against him for not returning the writ, has been fully con- 
sidered in a former part of this work (o). 

By Reg. Gen. M. 7 Will. 4, all rules upon sheriffs, other than 
the sheriffs of London and Middlesex, to return writs, whether 
of mesne or final process, and rules to bring in the bodies of de- 
fendants, are to be eight day rules instead of six day rules (p). 

The sheriff's return to a bailable writ of capias, that the 
defendant is 7)ot found in his bailiwick, is proper only in case 
he had no opportunity of arresting the defendant ; for where 
the sheriff has or might have taken the defendant, he is liable 
for a false return, if he return non est inoentus^q). But the 
court will not set aside the return (r). A return that " the 
defendant is not to be found in my bailiwick" would be bad (s). 
It is said that if a sheriff takes one by force of a cajnas, he does 
well, but if he returns non est inventus, he shall be a trespasser 
ah initio {t). 
Cepi corpus. But where the defendant has been arrested, and discharged 
on giving a bail-bond, the sheriff should return cepi corpus el 
paratmn haheo{ii), for it was his duty to take bail; for this, 
which was the ancient return, is not altered by the statute of the 
23d Hen. 6, c. 9 {x) ; and if bail be not duly put in and per- 
fected, the mode of proceeding against the sheriff is by attach- 
ment for not bringing in the body(7/). If the defendant has 
been discharged, on being arrested, without giving a bail-bond, 



(o) See ante, from p. 81 to p. 87. 

(p) Jervis's Rules, 152. 

(7) Hawkins D. Mildmay, Cro. Eliz. 
729; 12 Mod. 311; 2 Keb. 291; 
Becktord v. Montague, 2 Esp. 475. 

(?•) Goubotv. DeCrouy, IC. &M. 
772 ; 2 Dowl. 86, S. C. 

(s) Rex V. Sheriff of Kent, 2 M. & 
W. 316; 5 Uowl. 451, S. C. 

(() See Plovvd. 16. Quare. 



(ti) See this return, Append, c. 6, 
s. 4. 

(x) Cro. Eliz. 624, 808, 852 ; Noy, 
39; 1 Sid. 22, 439; 1 Vent, 55, 85 ; 
2 Saund. 60, 154 ; 1 Mod. 33, 57, 
227 ; 2 Mod. 83, 177 ; 3 Salk. 314. 

(y) See post, 173 ; also Neck v. 
Humphery, 3 Ad. & E. 131, per cur.; 
4 N. & M. 738, S. C. 



RULE TO llE'fURN THE WRIT. 169 



and does not appear at the return of the writ, the sheriff" will be chap. vi. 
liable to an action ; but in such .case it is usual to return cepi ^^'''^' '^' 
corpus et jinratum haheo, in order to give the defendant an oppor- 
tunity of putting in bail ; for it does not necessarily follow, when 
the sheriff' returns cepi corpus et paratum haheo, that he has taken 
a bail-bond ; he may have allowed the defendant to be at large, 
intending to put in bail when required, if he can do so (2). If 
the defendant be in the county gaol, the sheriff* should mention 
this in his return, and not say paratum haheo {(i). And gene- 
rally, if the fact be that the defendant is in custody, the sheriff 
should return that fact (6). If the sheriff" has discharged the 
defendant, or delivered him over to another custody, by direc- 
tion of the plaintiff", or by order of the court, or on depositing 
in the sheriff"'s hands the sum sworn to, and 10/, for costs, these 
should be mentioned in the return (c). When the sheriff" may 
return that the defendant was rescued out of his custody, or 
that the defendant remains sick in prison, and where mandavi 
hallivo is a good return, have already been noticed {d) ; and for 
the returns in general, see ante, from page 87 to 99. 

The sheriff", having arrested the party, miist, we have seen. The object 
return cepi corpus et paratum naoeo. Alter such return, 11 the miins the 
defendant be at large and no bail put in, or if bail be put in bring in ihe 
but not justified, the sheriff" may be ruled, or in vacation may " ^' 
be ordered (e), to bring in the body. If the sheriff^ return some 
excuse which is not sufficient, as an insujfficient return of rescue 
or languidus, he may, notwithstanding, be ruled to bring in the 
body(/). The intent of the rule, where the defendant is not in 
custody, is to compel the sheriff" to put in and perfect bail {g). 
If bail be put in, and notice of justification be given, yet unless 
the plaintiff" except to the bail, he cannot rule the sheriff to 
bring in the body (//). l"his rule cannot in general be taken 

(s) See 4 Nev. & M. 738, pev Pat- Aichb. 553, 7th ed. 
teson, J. (/) Rex i;. Sheriff of Middlesex, I 

(a) Rex V. Sheriff of VViUs, 8 Bar. 6c Aid. 190; Cavenagh r. Col- 
Moore, 518. lett, 4 Bar. & Aid. 279. 

(ft) 4 Nev. & M. 708, ptr Little- (g) Wolfe v. Collingwood, 1 Wils. 

dale, J. 262. 

(c) See each of these returns, Ap- (/;) Bex v. Sheriff of Middlesex, 8 
pend. c. 6, s. 4. T. R. 258 ; Rogers v. Mapleback, 1 

(d) Ante, p. 96 to 99. H. Blac. 107. See also Bond v. Evans, 

(e) Reg. Gen. H. T. 3 Will. 4, 4 Bar. & Cr. 864. 



170 sHErai'F's duty on a bailable capias. 

CHAP. VI. out until the time for putting in bail has expired (i) : fox it is 



SECT. IV. 



necessary that the proceedings against the slieriff should keep 
pace with the times allowed for putting in and perfecting bail ; 
otherwise it might happen that the defendant might justify bail 
after the sheriff' is fixed with the debt and costs, whereby the 
sheriff would be without remedy, for if he brings an action on 
the bail-bond against the defendant, or his bail, they may plead 
compeniit ad diem, and so defeat the action (i). If the time for 
putting in bail has not expired, the rule to bring in the body 
must not be taken out until the day after the expiration of the 
rule to return the writ. In such case, if the rule to bring in the 
body be taken out on the day on which the rule to return the 
writ expires, an attachment for non-compliance therewith will 
be set aside for irregularity (/). But it is the settled practice, 
where the time for putting in bail has expired, that the plaintiff" 
may rule the sheriff to bring in the body on the same day that 
he returns cepi corpus {vi). Where there has been laches on the 
part of the plaintiff in ruling the sheriff to bring in the body, 
the court will set aside an attachment for not bringing in the 
body ; as where the sheriff' returned cepi corpus, in Hilary term, 
and the plaintiff did not rule him to bring in the body until 
Michaelmas term, the court set aside an attachment for not 
doing \t(n). 
When the Where the plaintiff, on the return of cepi corpus, has recovered 

shciill c^innot - . . „ • i i ■ rr i 

be ruled lo damages m an action oi escape agamst the sheriff, he cannot 

body. rule him afterwards to bring in the body, for he cannot proceed 

against the sheriff as if the defendant was not in his custody, 

and then as if the return were true (o). Nor can the plaintiff rule 

(j) Rolfe u. Steel, 2 H. Blac. 276; a bail-bond; Austen v. Fenton, 1 

Rex V. Sheriff of Middlesex, 8 East, Taunt. 23. 
464. (/) Hutchins v. Hird, 5 T. R. 479 ; 

(A:) 2 Saund. 61 e. But if bail has Rex u. Sheriff of London, 2 East, 241. 
been put in but not justified, and the (m) Rex v. Sheriff of Middlesex, 4 

sheriff obliged to put the bail-bond in Maule & Sel. 427. 
force for his indemnity, to which ac- {n) Rex v. Sheriff of Surrey, 7 T. 

tion the defendants plead compendl ad R, 452 ; Rex v. Sheriff of London, 1 

diem, the court will not order there- Taunt, ill. And also where there 

cognizance of bail to be struck off the are laches in moving for an attach- 

file ; Leigh v. Bertles, 1 Marsh. 520 ; ment ; Rex v. Perring, 3 Bos. & Pul. 

6 Taunt. 167, S. C. And the court 151 , Rex i'. Sheriff of Surrey, 9 East, 

will order the date of appearance to 467 ; Rex v. Sheriff of Middlesex, 1 

be entered in the filacer's book on Dowl. 53. 

motion, where issue is joined in a plea (o) Berwick v. Walton, 2 Bar. & 

of comperuit ad diem to an action on Aid. 623 ; 1 Chit. Rep. 993, S. C. 



RULE TO BRING IN THE BODY. 171 

the sheriff to bring in the body after he has taken a cognovit chap. vi. 
from the defendant, for the defendant appears in court on the '- — — 



giving the cognovit, and the sheriff has done his duty (p). 

It was formerly usual, in the Queen's Bench, to proceed against Late sheiitf 
the late sheriff for not bringing in the body by distringas. But to bring in 
now by rule of that court, " where any sheriff, before his going 
out of office, shall arrest any defendant, and a cepi corpus shall 
afterwards be returned, he shall and may, within the time 
allowed by law, be called upon to bring in the body, by a rule 
for that purpose, notwithstanding he may be out of office before 
such rule granted ((/)." If the old sheriff be ruled to return 
the writ, and the new sheriff make a return of cepi corpus, the 
old sheriff cannot be ruled to bring in the body, for he has 
made no return (r). A similar practice has also obtained in 
C. P. (s), and in that court, a sheriff who is ruled on the last 
day of the term, but goes out of office before the next term, is 
liable for an attachment for not bringing in the body (t). 

In the counties palatine, the attachment, or other process of i,, the coun- 
contempt (t<), issues against the party who is in default; as '"^^ P'* "■""'^• 
against the Chancellor of Lancaster, Bishop of Durham (a), or 
the Chamberlains of Chester or their officers, if they refuse to 
make a mandate to the sheriff, or to return the writ into court 
after he has made his return to them ; or against the sheriff if 
he will not return the mandate, or bring in the body of the de- 
fendant, pursuant to his return of cepi corpus, &c., for though 
the sheriff is not the immediate officer of the court above, yet he 
is answerable to it for contempts. 

As the object of the rule to bring in the body is to bring the How servec^- 
sheriff into contempt, it must be served in the same manner as 
the rule to return the writ (y). 

This rule, like the rule to return the writ, is a four-day rule ^"^ ">!"■ 

•' plied with. 

(p) Rex V. Sheriff of Surrey, 1 East, 604. 

Taunt. 159. So if the surrender of (s) Price v. Street, Barnes, 102. 

the defendant be dispensed with by (t) Meekins v. Smith, 1 H. Blac. 

the plaintiff. See West v. Ashdown, 629. 

1 Bing. 164; 7 Moore, 566, S, C. (u) Flight y. Stanley, Tidd's Prac. 

See also Bowsfield J). Tower, 4 Taunt. 8th edit, where a distringas issued 

456 ; Crofts v. Johnson, 1 Marsh, 59 ; against the Bishop of Durham, being 

5 Taunt. 319, S. C. a peer. 

(q) R. T. 31 Geo. 3, K. B. 4 T. (.r) ■ t>.The Mayor of Wigan, 1 

R. 379. And see 1 Bulstrode, 70. Sid. 92. 

(!•) Rex V, Sheriff of Middlesex, 4 (y) See ante, 84. 



172 sheriff's duty on a bailablf capias. 



SECT. IV. 



CHAP. VI. in London nnd Middlesex (s), and an eight-day rule in every 
other county (a). The only mode of complying witli the rule, 
is either by bringing the defendant into court, or putting in and 
perfecting bail. If the defendant is not in custody, or special 
bail put in and perfected, the sheriff is liable to be attached for 
not bringing in the body. The sheriff' has the whole of the day 
on which the rule expires to bring in the body ; therefore an 
attachment cannot be moved for until the day after ; or if the 
rule expire on the last day of the term, not until the second day 
of the next term. 

And now, by R. G., H. T. 1 Vict., it is ordered that in all cases 
special bail may be justified before a judge at chambers, both in 
term and vacation (b). 

Where two days' (c) time was given to justify, and bail was 
not justified on the last of those two days, an attachment was 
allowed to issue on that day. If the sheriff' show that the de- 
fendant has been rendered in discharge of his bail, and is then 
in custody, this is a sufficient compliance with the rule (d). 
Even if the defendant be not in custody at the return of the writ, 
the sheriff" may put in bail for the defendant, and those bail may 
take and render him without justifying (e), but they must not 
take him before the time for putting in bail has expired (y). 

If the time limited has expired, and the rule or order has not 
been obeyed, the contempt is not purged by rendering the de- 
fendant, or by putting in and perfecting bail on a subsequent 
day, although before the attachment is moved for (g-). H cepi 
corpus is returned to a writ of capias, without either a rule or 
an order to return the writ, the sheriff' may still be ruled or 
ordered to bring in the body, and may be attached for dis- 

(s) R. T. 6 Geo. 3, K. B. ; R. II. regular ; Rex v. Sheriff of Middlesex, 

7Geo. 3, C. P. 2 Dowl.&Ry.225. And see Rex i;. 

(a) R. G., M. T. 7 Will. 4, ante, Sheriff of London, 1 Chit. Rep. 567. 
p. 84. Formerly it was a six day (d) Rex ti. Sheriff of Middlesex, 8 
rule in every other county; R. G. 5 T. R. 464 ; 2 M. & S. 562. 
& 6 Geo. 3. K. B. (e) Berchere v. Colson, Stra. 876 ; 

(b) R. H. T. 2 Will.4, r. 17,was Rex r. Butcher, Peake'sN. P. C. 169; 
annulled by this rule. 7 T. R. 527 ; Evans v. Swete, 2 Bing. 

(r) 1 Chit. Rep. 356. Where bail 271. 

were rejected after time given to in- (/) Taylor y. Evans, 1 Bing. 367 ; 

quire into their sufHciency, and the 8 IMoore, 398, S. C. 

defendant was rendered on the same ( g) R. G., H. T. 3 Will. 4; Smith 

day, but before notice of render an v. Andrews, 2 M. 6c W. 536 ; R. u, 

attachment was moved for and grant- Sheriff of Middlesex, 2 Dowl. 432 ; R. 

ed, the attachment was held to be d. Sheriff of Middlesex, 3 Uovvl. 186. 



ATTACHMENT. 



173 



obedience under the R. H. T. 3 Will. 4, just as though the re- chap. vi. 

1 1 /7 \ SECT. IV. 

turn had been made under a rule or order {li). 

Wliere the rule to bring in the body expires in vacation, or 
on the last day in term, the sheriff has all the first day of the 
next term to comply with the rule, and an attachment granted 
on that day is irregular (i) ; and although a sheriff may be in 
contempt, yet it appears to be the practice of the Courts of 
Queen's Bench and Common Pleas, that if the defendant be ren- 
dered, and notice thereof be given, or bail be justified before 
the attachment is moved for, the sheriff is not liable to an 
attachment (j). The Court of Common Pleas have refused to 
allow any advantage to be taken of the priority of motion on the 
same day ; therefore, if bail be brought up on the same day on 
which an attachment has been obtained against the sheriff, that 
court will permit them to justify and set the attachment aside (k). 
But where the defendant died before an attachment issued, but 
after the sheriff was in contempt, the attachment was held 
regular (I). The sheriff should, as soon as he is served with 
the rule to bring in the body, give notice thereof to the bail and 
the defendant, in order that bail may be put in and perfected, 
or the defendant be rendered in discharge of his bail, which being 
done the rule is complied with. Where the sheriff is ruled to 
bring in the body, he is bound to obey the rule, even though 
the plaintiff's proceedings have been stayed by injunction (?«). 

If on the expiration of the rule to bring in the body, bail or iheat- 
above be not put in and perfected, or the defendant be not in wLITami' 
custody, the court on motion will grant an attachment against •'°"' g""'«<'- 
the sheriff (?i). Or formerly, before the Uniformity of Process 
Act, if the process were by original, and bail were put in with 
the filacer of a wrong county, this being held no bail, the court 

{h) Bertrams. Davis, 6 Dowl. 180. stmcting to move for the attachment 

(i) Rex V. Sheriff" of Middlesex, 8 where the bail justify before the motion 

T. R. 464. for the attachment is made ; Rex v. 

(/) Thorold v. Fisher, 1 li. Blac. Sheriff of Middlesex, 1 Taunt. 56. 
9 ; Turner v. Bristow, 2 Bos. & Pul. (/) Rex v. Sheriff of Middlesex, 

38 ; Weddall u. Berger, 1 Bos. & Pul. 3 T. R. 133 ; sed vide cases last note. 
325; Rex D. Sheriff of Middlesex, 2 (m) Rex v. Sheriff of Middlesex, 

Maule & Bel. 562 ; bed vide Anon. 1 1 Dowl. 454. 
Chit. Rep. 567. («) 2 Saund. 61, that is if the rule 

(k) Turner v. Bristow, 2 Bos. & expire in term on the day after the ex- 

Pul. 38. In such case the plaintiff is piration of the rule, if on the last day 

entitled to his costs in moving for the in term on that day, 11 East, 191 ; if 

attachment; id. ibid.; Jarrati). Creasy, in vacation, on the second day of the 

3 Bos. & Pul. 603. The costs of in- next term, 8 T. R. 464. 



174 



SHERIFF S DUTY ON A BAILABLE CAPIAS. 



CHAP. VI, 
SECT. IV. 



would grant an attachment (o). The attachment is a criminal 
process, directed to the coroner, when it issues against the pre- 
sent sheriff, or to the present sheriff" when it issues against the 
late sherifr(;}). Where the coroner is the defendant in the 
cause, the attachment against the sheriff must issue to elisors 
in the first instance (q). Until the attachment is granted, it is 
on the plea side of the Court of Queen's Bench ; but as soon as 
the attachment is granted, the proceedings are on the crown side 
of that court (j). The motion for the attachment must be 
grounded on an affidavit of the service of a copy of the rule, 
and that the original was shown at the same time ; and also that 
no bail has been put in, or that bail has been put in but not 
justified. And in the case of a judge's order to bring in the 
body, the affidavit should also state that the order was made 
a rule of court in the term next following the order. In the 
Queen's Bench and Exchequer, it seems that the judge's order 
may be made a rule of court, and an attachment for not obeying 
it obtained in one motion, but it seems otherwise in the Common 
Pleas ; and in the Queen's Bench it seems to be necessary to 
have two rules (s). Where there are two defendants in one writ, 
and separate rules have been given to bring in the body of each 
defendant, it is proper to issue two attachments against the sheriff 
for not obeying those rules (t). 

If any of the proceedings against the sheriff be irregular, the 
court will set aside the attachment ; so if any of the proceedings 
on the part of the plaintiff relative to bail be irregular, the court 
will set aside an attachment granted against the sheriff. But 
the sheriff cannot be relieved on account of the defendant's 
death after the contempt incurred, but before the attachment 
issued (u). 
Or for laches If the plaintiff has not moved for his attachment within a 
the'pufntiff?'^ reasonable time, the court wall set it aside, for by such delay 



Attachment 
will be set 
aside for 
irregularity. 



(o) Ilex V. Sheriff of Middlesex, 
1 Cliit. Rep. 237 ; Smith v. Miller, 
7T.R.96; Harris v. Calverl, 1 East, 
603 ; sed vide Rex v. Slietiff of Mid- 
dlesex. 3 Maule & Sel. 532. 

(p) Tidd's Prac. 314, 8th edit.; 
Chit. Aichb. Prac. 556, 7th edit. 

(q) Reg. V. Sheriff of Glamorgan- 
shire, 1 Uowl. N. S. 308. 

(r) 1 Tidd's Prac. 314, 8th edit. 



(s) Barnard v, Berger, 1 N. R. 
121 ; Rex v. Smithies, 3 T. R. 351. 
In this last case, the court allowed the 
plaintiff' to make a supplemental affi- 
davit ; Arch. 556, 7th edit. See form 
Append, to chap. 

(t) Constable I'. Brislow, 8 Moore, 
162. 

(n) 5 T. R. 134; sed vide 2 Maule 
lS: Sel. 562. 



SECT. IV. 



ATTACHMEKT. 

the sheriff may be deprived of his remedy against the party, chap 
Thus where, an attachment having been obtained on the 19th . 
November, at the desire of the sheriff's officer the attachment 
was not then sued out, nor was it sued out and served on the 
sheriff until the 19th of March following, the court set aside the 
attachment as irregular (x). So where an attachment was 
granted against the sheriff for not bringing in the body on the 
11th of February, returnable on the 4th of May, and was not 
issued till the day before; in the mean time, on the 19th of 
March, the defendant became bankrupt ; the court set aside the 
attachment on account of the laches of the plaintiff (y). Lord 
Ellenborough, in giving his opinion, said, " there is no occasion 
to lay down any general rule with respect to the lapse of time 
which shall be deemed sufficient to discharge the sheriff from 
the attachment in these cases ; but certainly eighty days exclu- 
sive is a long time to lay by after the party is armed with the 
process of the court against the sheriff: and here, in the mean 
time, an important change of circumstances has taken place by 
the bankruptcy of the defendant." For the same reason, it is 
holden that a cognovit taken for payment of the debt and costs 
by instalments discharges the sheriff, although it was agreed 
that the right of moving for an attachment against him should 
remain with the plaintiff as a security, in case any of the instal- 
ments should not be paid {z). But where the plaintiff, at the 
desire of the sheriff's officer, forbore to enforce an attachment, 
and two days afterwards applied to the sheriff for the debt and 
costs, the Court of Common Pleas held that the sheriff was not 
discharged by the indulgence given to the officer, it not appear- 
ing that the sheriff was prejudiced by the delay (a). Where the 
plaintiff had agreed to delay proceedings for a month, at the 
instance of one of the bail, on payment of debt and costs ; the 
action not being settled, an attachment was obtained against 
the sheriff, which the court refused to set aside on the appli- 
cation of the bail (b). Where the rule to bring in the body 

(x) Rex D. Perring, 3 Bos. & Pul. Bing. 164 ; 7 Moore, 566, S. C; 

151. Bousfield v. Tower, 4 Taunt. 456, 

(y) Rexv. SheriffofSurrey,9East, Crofts i'. Johnson, 1 Marsh. 59; 5 

467 ; and see Rex v. Sheriffs of Lon- Taunt. 319, S. C. 

don, 2 Chit. Rep. 58; Rex i;. Sheriffs («) Rex v. Sheriffs of London, 1 

of London, 1 Dowl. & Ry. 163. Taunt. 489. 

(z) Rex J). Sheriff of Surrey, ITaunt. (I>) Rex y. Sheriff of Middlesex, 1 

159; see also West v. Ashdovvn, 1 Dowl. & Ry. 388. 



175 



176 sheriff's duty on a bailable capias. 

CHAP, VI. expired on tlie second day of Michaelmas term, during the vaca- 
sECT.rv. jj^j^ ^^j.gj. ^j^g service of the rule, a judge's order was obtained 
by consent to stay proceedings, on payment of debt and costs 
within a month : on a motion to discharge an attachment for not 
bringing in the body, the Court of Common Pleas was equally 
divided in opinion, whether the sheriflfvvas discharged or not (c). 
Where defendant obtained a summons for payment of debt and 
costs, returnable on the same day as the day on which tiie de- 
fendant should have justified bail, which summons the plaintiff's 
attorney failed to attend, the summons was renewed for the next 
day, on which an attachment was obtained against the sheriff, 
which was set aside for irregularity (d). Since the stat. 1 & 2 
Vict. c. 110, the plaintiff does not waive his right to an attach- 
ment by declaring in chief (e). And the capias being now a mere 
collateral proceeding, it seems that the court would in all cases 
set aside the attachment on putting in and perfecting bail, or pay- 
ment into court in lieu of bail, or render and payment of costs (/). 
Regular Also, whcre the attachment is regular, it may be stayed or 

on what ' set aside by the favour and indulgence of the court, in order to 
aside! '*^ let in a trial of the merits, or for the benefit of the sheriff, or 
of the defendant, or his bail (^). Formerly, if the plaintiff had 
not lost a trial, the court would set aside a regular attachment 
upon putting in and perfecting bail above, on payment of 
costs (h). But if a trial had been lost, the court would further 
require that the attachment should remain in the office, and 
stand as a security to the plaintiff for the sum recovered (i). 
And it seems that the attachment would stand as a security as 

(c) Rex V. The late Sheriff of Mid- ing judgment of, the term in wiiich the 
dlesex, 2 Bing, 366. writ was returnable. According to ihe 

(d) Rex V. Sheriff of Middlesex, 5 pracliceoflheCourtsof Queen'sBench 
Bar. & Aid. 746. and Common Pleas, a trial was not 

(e) Reg. u. Sheriff of Montgomery- considered to be lost unless the plain- 
shire, I Dowl. N. S. 388; 9 M. & tiff had declared rfe 6p»e esse; 5 Taunt. 
W. 448, S. C. 608. So decided in K. B., Hil. 5 & 

(/) Ante, p. 167; Chit. Archb. 6 Geo. 4. Now, however, (since the 

569, 7th edit. 2 Will. 4, c. 39,) there can be no 

(g) See Stride !;• Hill, 1 ftl. & W. declaration deftejje esse; andtheplain- 

37. tiff, moreover, cannot be prevented 

(h) Hill V. Bolt, 4 T. R. 352 ; from proceeding lo trial by the default 

Callan v. Tye, 2 H. Blac. 235. of the bail to the sheriff, or of the she- 

(i) Phillips V. Whitliead, 1 Chit. riff, because the original action, being 

Rep. 270. The technical term, " lost commenced by wrii of summons, may 

a irial," signified that by the neglect go on, though the sheriff do not bring 

of the defendant to perfect bail in due in the body, i. e, put in bail above, or 

time, the plaintiff had been prevented the bail to llie sheriff do not put in and 

from trying his cause in, and obtain- perfect special bail. Ante, p. 167. 



OF THE ASSIGNMENT OF THE BAIL-BOND. 177 

well as the bail-bond, where a trial had been lost, although the chap. vi. 

defendant had been surrendered in discharge of his bail (j). '. — 1_ 

The Court of King's Bench refused to discharge so much of a 
rule to set aside an attachment as required it to stand as a 
security, at the instance of the sheriff, on the ground of his 
being no party to the rule in the ensuing term, the application 
being too late (k). But when the sheriff has been guilty of a 
breach of duty, in discharging the defendant out of custody 
without the plaintiff's assent, and without taking a bail-bond (Z); 
or where he has taken a bail-bond with one surety only(rrt), or 
an undertaking for the appearance of defendant (n), the courts 
will not set aside a regular attachment. But where by affidavits 
it appeared that the omission to take a bail-bond was by mis- 
take, on an application by the defendant the court set aside the 
attachment, on the terms of its remaining in the office as a 
security (o). 

By a rule of the Court of King's Bench («), and by a similar Affidavit 

•'. ° \: J' J required in 

rule in the Exchequer (q), " No rule shall be drawn up for moving to 
setting aside an attachment regularly obtained against a she- regnUr at- 
riff for not bringing in the body, or for staying proceedings 
regularly commenced on the assignment of any bail-bond, 
unless the application for such rule shall (if made on the 
part of the original defendant) be grounded upon an affidavit 
of merits, or (if made on the part of the sheriff, or bail, or any 
officer of the sheriff) be grounded upon an affidavit showing 
that such application is really and truly made on the part of the 
sheriff, or bail, or officer of the court, (as the case may be), at 
his or their own expense, and for his or their indemnity only, 
and without collusion with the original defendant :" and such 
affidavits are necessary also by the practice of the Court of Com- 
mon Pleas (r). In swearing to merits, an affidavit that the 

O) 1 Chit. Rep. 270, n. 2 Marsh. 261, S. C. 

(k) Lee V. Gary, 1 Chit. Rep. 180. (m) Rex i-. Sheriffs of London, 2 

(0 Vanderhadeni). BiiUen,4 Dow. Bing. 227. 

6 Ry. 155; Rex v. Sheriff of Suiry, (n) Fuller u. Presi, 7 T. R. 109. 

7 T. R. 239; Collins v. Snuggs, 6 (o) Tuinbuil v. iMoreton, 1 Chit. 
Moore, 111; Rex d. Sheiiffs of Lon- Rep. 721. 

don, 2 B. & Aid. 354; 1 Chit. Rep. (/>) Reg. Gen. M. T. 59 Geo. 3, 

68, S. C; Rex v. Sheriffs of Lon- 2 B. & Aid. 240; 1 Chil. Rep. 

don, ibid. 567 ; Ibbotson v. 'I'indal, 348, n. (a). 

1 Bing. 156; 7 Moore, 552, S. C. (q) H. T. 7 W. 4, 2 M. & W. 

And see 1 Bos. & Pul. 225 ; 2 Bos. & 219. 

Pul. 35, 246; I Esp. 87; 7 East, (r) Haidisty v. Slorer, 1 N. R. 

606; 1 Taunt. 119; 6 Taunt. 554; 123. 



tacliment. 



178 



SUERII-F S DUTY ON A BAILABLE CAPIAS. 



CHAP. VI. defendant has a ffood defence to the action is not sufficient, it must 

SECT IV o «/ 

state a good defence on the merits (s). An affidavit of merits 

must be made by the defendant himself (<), or by his attorney 
or agent, and if the affidavit be made by the attorney, it must 
show that he is the attorney for the defendant (u) ; and when 
such an affidavit is made, it is not necessary to state in the 
affidavit on whose behalf the application is made {x). 

The application may be made by one of the bail on his own 
affidavit, without an affidavit from the other ha'i\(y). Where, 
in an affidavit on behalf of the sheriff', the word "protection" 
was used for " indemnity,'' the affidavit was held to be insuffi- 
cient (s). And where the affidavit on behalf of bail stated that 
the application was made their " only indemnity," instead of for 
their " indemnity only," it was held insufficient (a). On an 
application by an officer, he need not deny collusion with the 
bail (6). If the affidavit be defective, the court may allow it to 
be amended (c). 

Estentofihe If the court will not set the attachment aside, the sheriff" is 

slieiifF's liabi- 
lity on ihe liable to the extent of the sum really due from the defendant to 

attachment. ii--/v.iii-ti ii i 

the plaintm, although it be beyond the sum sworn to, and 
costs (d) ; but where a bail-bond has been taken, the sheriff* is 
not liable beyond the penalty of the bond(e) and the costs of the 
attachment (f). And where several actions were brought at 
the same time against the acceptor, drawer, and indorser of a 
bill of exchange ; in the action against the acceptor, the sheriff" 
was attached for not bringing in the body, but the court relieved 

(s) Grotlick v. Bailey, 5 Bar. & C^) Reg. «. Sheriff of Middlesex, 8 

Aid. 703; 1 D. & R. 155, S. C. ; A. & E. 938. 

see also Rex d. Sheriff of Middlesex, (a) Reg. v. Sheriff of Cheshire, 6 

1 Dowl. 398 ; Lane v. Isaacs, 3 Dowl. 709 ; 3 M. & W. 605, S. C. 

Dowl. 652; Tate v. Bodfield, ihiJ. (ft) Rex v. Sheriff of Middlesex, 3 

218; Page v. South, 7 Dowl. 412; Dowl. 194. 

Bower i;. King, 1 Dowl. 282; Hallett (c) Reg, v. Sheriff of Cheshire, 

V. Aubrey, ibid. 688; Crossby v. supra; Call v. Thelwell, 3 Dowl. 

Innes, 5 Dowl. 566 ; Scholefield v. 444; 1 C. M. & R. 780, S. C. 

Huggins, 3 Dowl. 427 ; Bromley v. (d) Heppel v. King, 7 T. R. 370 ; 

Gerish, 1 Dowl. & L. 768. Stevenson v. Cameron, 8 T. R. 29; 

(0 Rex r. Sheriff of Middlesex, 1 Fowldsr. ftlackintosh, 1 H. Blac.233; 

Chit. Rep. 347. see also Rex t'. Sheriff of Middlesex, 

(u) Bormefor v. Russell, 5 Dowl. ibid. 543. 

546. (e) Rex v. Sheriff of Middlesex, 3 

(.r) Bell V. Taylor, 1 Chit. Rep. East, 604 ; and see the cases cited ia 

572. the last note. 

(y) Rex V. Sheriff of Middlesex, 3 (/') Rex v. Sheriff of Devon, 1 B. 

Dowl. 186. & Adol. 159. 



RULE TO RETURN THE WRIT. 179 

the sheriff on payment of the sum due on the bill, and the costs chap. vi. 
in that action only (g). The statute of 43 Geo. 3, c, 46, s. ^^^^' ^''- 
2, made no difference in the extent of the liability of the 
sheriff, where he has not taken money on the arrest under that 
act ; in such case, now, as before that act, he can only relieve 
himself on payment of debt and costs (/«). 

If the sheriff has taken a bail-bond, and is obliged to pay the What re- 
debt and costs by reason of the defendant's nonappearance, he shtrui has 
may reimburse himself by bringing an action on the bail- obuged'to^ 
bond(2); but if the sheriff has not taken a bail-bond on the J^il^ colts on' 
arrest, he cannot maintain an action for the money paid by him 
under the attachment(^-), nor can he detain the defendant in 
custody for it (/\ Where the defendant has put in but not 
justified bail, and to an action on the bail-bond pleads comperuit 
ad diem, the court will order the recognizance to be struck off 
the file (m). The Court of Common Pleas, in one case, on motion, 
ordered the date of the defendant's appearance to be entered in 
the filacer's book, after issue joined on the plea of comperuit ad 
diem in an action on a bail-bond (w). 



the attach- 
nienl. 



Section V. 

j4ctions against the Sheriff for Escape, ^'C. 

If the sheriff arrest the defendant, and discharge him without What shall 
taking a bail-bond, but have him not at the return of the writ, es'cape. 
it is an escape (o) ; and if the defendant be in the sheriff's 
custody at the return of the writ, but be afterwards allowed to 
go at large without the consent, or without the order of a court 
of competent jurisdiction, or if the defendant be rescued from 
the county gao\{p), or if, being in custody in the county gaol 

(g) Rex V. Sheriffs of London, 2 (/) Rimmer v. Turner, 3 Dowl. 

Bar. & Aid. 192. 601. 

(h) Rex V. Sheriffs 'of London, 9 (m) Leigh y. Bertles.l Marsh. 520; 

East, 316. 6 Taunt. 167, S. C. 

(i) The money is generally paid by (n) y\uslen v. Fenton, 1 Taunt. 23. 

the officer on the attachment, who (o) See Bac. Abr. Escape (D; ; 

brings the action on the bail-bond in Com. Dig. Escape (B); Cro. Jac. 

the name of the sheriff. 419 ; S. C. 1 Roll. Rep. 388, 440, 

(fc) Pitcher v. Bailey, 8 East, 171. (p) See ibid. ; Stra. 435. 

N 2 



180 SHERIFr's DUTY ON A BAILABLE CAPIAS. 

CHAP. VI. after the writ is returnable, he be taken from the gaol to another 

' place in the same county, even in the gaoler's custody (q), it is 

an escape, although for such escape no action will lie against the 

sheriff, unless the plaintiff has sustained some actual damage, 

either from having been delayed in his suit or otherwise (r). 

Re-caption. Before the Uniformity of Process Act, if the sheriff allowed 
a person arrested by him on mesne process to go at large, he 
might retake him at any time before the return of the writ (s) ; 
but since the Uniformity of Process Act, the day of the execu- 
tion of the writ being the return day of it, it seems that the re- 
capture ought to be on thatday(i); and even afterwards the 
sheriff may put in bail at the return of the writ, which bail may 
take and render the defendant (ic) ; or if the defendant escape 
out of custody, without the privity of the sheriff or his officer, 
he may be retaken either before or after the return of the writ 
on fresh pursuit (x), even on a Sunday (?/), or although he has 
been declared a bankrupt after his escape, and at the time of 
the retaking had the protection from arrest giving him by the 
commissioners (2) 3 but after the sheriff has discharged the 
defendant with the consent of the plaintiff, he cannot retake him 
for his fees (a). If a person obstructs the sheriff from retaking 
a person after his escape, the court will grant an attachment for 
such obstruction (ft). 

Escape- It may not be an improper place to introduce here the provi- 

sions of the statute of 1 Anne, c. 6, respecting escape-warrants. 
By that statute it is provided, that if any person in the King's 
Bench or Fleet Prisons, in execution or on mesne process, or 
upon contempt for not performing orders or decrees (c), shall 
escape from such prisons, a judge of the court from which he 

((/) Williams v. Mostyn, 4 M. & lort). Evans, 1 Bing. 367 ; 8 Moore, 

W. 145. 398, S. C. 

(r) Ibid.; I'lanck v. Anderson, 5 (x) Com. Dig. Escape (E). 

T. R. 37; Randell v. Wheble, 10 A. (y) Anon. 6 Mod. 231, 95. 

& E. 719 ; Brown v. Jarvis, 1 M. & (s) Anderson v. Hampton, 1 B. & 

W. 704 ; see also Wylie v. Birch, 4 Aid. 308. 

Q. B. 566 ; 3 G. & D. 629, S. C. (a) Willing v. Goad, Stra. 909. 

(s) Atkinson v. MaUeson, 3 T. R. (b) See Miller v. Knox, 4 Bing. 

172 ; see also Fuller v. Prest,7 T. R. N. C. 574 ; Arch. 545, 7lh edit. 

109. (c) On an attachment against A., 

(t) Chit. Arch. 543, 7th edit. B. opposes the execution, and is com- 

(u) Rex V. Butcher and others, milled for contempt : this is not a con- 

Peake, N. P. C. 169; Evans t;. Swete, tempt within this act; Hinchliffe v. 

2 Bing. 271 J Berchere v. Colson, Payne, Stra. 99. 
Stra. 876 ; see also 7 T. R. 572 ; Tay - 



warrant. 



ACTIONS AGAINST THE SHERIFF FOR ESCAPE, &C. 181 



CHAP. VI. 
SECT. V. 



was committed (c?), on the oath of one or more credible wit- 
nessses (e), may grant an escape-warrant, on the apph'cation of 
any person whatsoever who may demand the same, which war- 
rant is to have effect all over England ; and every sheriff in his 
respective county has power to execute it in his county, and to 
commit him to the county gaol, to be kept without bail or main- 
prize (/), until judgment be satisfied or reversed, or the con- 
tempt, whereon he was committed, purged, or until he have 
verdict in his favour (g), if committed on mesne process. 

Where the plaintiff proceeds against the sheriff by action, it is 
usual to insert three counts in the declaration: 1st, for an 
escape ; 2dly, for not arresting the defendant ; Sdly, for not 
assigning the bail-bond on request. 

Where the defendant has been arrested, and has given a bail- For what 

,,_,. , /-i-ii i. flefault the 

bond for his appearance at the return ot the writ, and does not sheriff is 
appear, the sheriff is not liable to an action for an escape, for he a'ctio^n." 
was obliged by the statute to take bail (/*). The only mode of 
proceeding in such case against the sheriff is by attachment. 
And where the plaintiff was told by a clerk, on application at the 
sheriff's office, that no bail-bond had been taken, and brought 
an action for an escape against the sheriff, but had no count in 
his declaration for not assigning the bail-bond, and it appeared 
in evidence that a bond had been taken, the plaintiff was non- 
suited, which nonsuit the court refused to set aside (i). But if 
the defendant have not given a bond, and bail be not put in and 
perfected in due time, or the defendant be not in custody at the 
return of the writ, the sheriff is liable to an action for an es- 

(d) If the defendant bas been turn- will supersede an escape- warrant ob- 

ed over from the King's Bench to the tained thereon ; Webb v. Thorapson, 

Fleet by the Court of Common Pleas, 1 Stra. 401. 

a judge of either court may grant the (/^) Posterne i;. Hanson, 2 Saund. 

warrant ; Rex v. Uunbar, 10 Cieo. 1, 61 ; Benson v. VVelby, ib. 154 ; Anon. 

8 Mod. 240. 1 Vent. 55; Parker v. VVelby, ih. 85; 

i^e) The oath may be taken before a Ellis v. Yarborough. 1 Mod. 227 ; 2 

commissioner in the country ; 5 Ann. Mod. 177, S. C ; Grovenor v. Soame, 

c. 9, s. 2. 6 Mod. 122 ; Kitton v. Fag, 10 Mod. 

* (V) Nor can he be discharged on 288; Page v. 'I'ulse, 2 Mod. 83; 1 

bringing the money into court, Mother- Mod. 240, 244, S.C; Bentiey v. Hoare, 

shell V. Bows, 6 Mod. 21 ; nor shall 1 Lev. 86; Allen v. Pvobinson, 1 Sid. 

he be allowed a day-rule. Cotton v. 22 ; Barton v. Aldeworih, Cro. Eliz. 

Martin, 6 Mod. 63. 624. 

(») Where, by the practice of the (») Mendez v. Budges, 5 Taunt, 

court, the defendant was supersedable 325. 
at the time of his escape, the court 



182 sheriff's duty on a bailable capias. 



SECT. 



CHAP. VI. capc(/t). And if the sheriff has taken a bail-bond on the 
arrest, but the defendant do not appear at the return of the 
writ, an action on the case will lie against the sheriff if he refuse 
to assign the bail-bond on request (I). Also, if the officer will 
not arrest the defendant when he has notice of his being in the 
county, and he might have arrested him, the sheriff is liable 
to an action on the case, provided the defendant do not appear 
at the return of the writ, and provided also that the plaintiff 
has sustained any damage by reason of the sheriff's neglect(»j). 
The plaintiff is not, however, bound to give information to the 
sheriff so as to enable him to arrest and identify the defend- 
ant, for the sheriff himself is bound to make due inquiries after 
the defendant for the purpose of finding him (n). But the 
sheriff is not liable to an action for an escape for discharging a 
defendant out of custody who was misnamed in the writ, 
although he had assumed the name by which he was sued in 
the particular transaction out of which the action arose (o). As 
the duty of the sheriff is merely to have the defendant at the 
return of the writ, an action against the sheriff will be defeated 
if bail be put in before the expiration of the rule to bring in 
the body, although after an action for an escape commenced (p). 
And after an action commenced against the sheriff, the putting 
in and perfecting bail of the term in which the writ is return- 
able is an answer to such action (q) ; but bail put in of a subse- 
quent term would be no answer to such action (r). And where 
bail is put in to defeat an action commenced against the sheriff, 
the plaintiff should oppose the justification (s) ; or if the bail 
have been allowed to justify without opposition, the court, on 

(h) Fuller V. Prest, 7 T. R. 109; (p) Pariente v. Plumbtree, 2 Bos. 

Webbt). Matthews, 1 Bos. &Pul. 225; & Pul. 36; Murray v. Durand, 1 

Atkinson v. Mattesou, 2 T. R. 176, Esp. 87. 
177. (q) Allingham v. Flower, 2 Bos. 

(0 Stamper v. Milborne, 7 T. R. & Pul. 246 ; but the bail must be 

122. It is always advisable to de- perfected,! East, 607. Sed videWehh 

mand an assignment of the bail-bond v, Matthew, 1 Bos. & Pul. 225, and 

before commencing an action against the judgment of Gibbs, C. J., in Birn 

the sherifF ; see Mendez v. Bridges, 5 v. Bond, 6 Taunt. 554 ; 2 Marsh. 261, 

Taunt. 325. S. C. 

(m) Brown v. Jarvis, 1 M. & W. (r) Moses ;;. Norris, 4 M. & Sel. 

704 ; 5 Dowl. 285, S. C. ; Williams 397. 
V. Mostyn, 4 M. & W. 145. (s) Fuller t;, Prest, 7 T. R. 109 ; 

(n) Dyke v. Duke, 4 Bing. 197. Webb v. Matthew, 1 Bos.& Pul. 225. 

(o) Morgan ?i. Bridges, 1 Bar. & See also Birn u. Bond, 6 Taunt. 554; 

Aid. 647; a/ife, p. 70. 2 Marsh. 261, S. C. 



ACTIONS AGAINST THE SHERIFF FOR ESCAPE, &C. 183 

motion, will set aside tlie allowance of bail on payment of the chap. vi. 

costs of justification (?). But where the defendant was ren- ^ — ' 

dered on the day of the expiration of the rule to bring in the 
body, the Court of Exchequer refused to set aside the allow- 
ance of bail obtained after an action commenced against the 
sheriff for an escape, though no bail-bond had been taken, nor 
bail above put in in due time (?<). 

The venue in an action on the case for an escape is tran- 
sitory (f). 

In a declaration in an action against a sheriff for not perform- The deciara- 
ing his duty, framed in either of the three ways above men- 
tioned, it must be alleged that the plaintiff had a cause of action 
against the defendant in the original action, otherwise the decla- 
ration is bad on demurrer (x). But it seem.s to be sufficient to 
allege generally that the plaintiff had a cause of action, without 
minutely stating the cause of action with the same precision as 
in an action against the defendant himself (?/). The declaration 
must allege the issuing of the process and the delivery to the 
sheriff within one month after such issuing, or it will, it seems, 
be bad on special demurrer (2). A variance in the description 
of the process in the declaration, in an action for not arresting the 
defendant, or for escape on viesne process, or in any other action 
against the sheriff for misconduct or negligence in executing 
such process, is fatal (unless amended under 3 & 4 Will. 4, c. 
42, s. 23) ; thus (when such writs were in use) where a latitat 
in trespass, with an ac et'iam, was stated to be a latitat in a 
plea of trespass, the variance was held fatal (a). And where 
in the declaration it was alleged that the party was arrested 
under a writ indorsed for bail by virtue of an affidavit now 

(() How t. Lacey, 1 Taunt. 119; edit.; 2 Saund. 150; 8 Went. Ind. 

Bosanquet V. Simpson, Tidd's Prac- xxxiii. Il is not necessary to state the 

tice, 235, 8tl) edit. And see Leigh v. precise sum due, 2 Lev. 85 ; if the de- 

Bertles, 1 INJarsh. 520. claiation state the debt to be for goods 

(i() JVlorley u. Cole, 1 Price, 103. sold, it must be so proved, 2 Esp. 

(t)) Griffith V. Walker, 1 Wils. 476; a declaration stating the debt 

336; Gawdy's case, Dyer, 278 b ; to be for goods sold, &c., proof of goods 

Anon. 2 Salk. 669, 670. sold on credit was held to be a fatal 

ix) Gunter v. Cleyton, 2 Lev. 85 ; variance, 5 Esp. 102. 

Alexander D. Macauley, 4 T. 11. 611; (s) 1 & 2 Vict. c. 110, s. 3 ; Ran- 

2 Saund. 150 a, n. 1. dell v. Wheble, 10 A. & E. 719; 

(j7) Com. Dig. Pleader (E) 18, 2 P. & D. 602, S. C. 

2 P. 1 ; Lutw. 110. See the prece- (a) Gunter v. Cleyton, 2 Lev. 85 ; 

dents, 2 Chitty's Pleading, 552, 7th Bull. N. P. 66. 



184 sheriff's duty on a bailable capias. 

CHAP. VI. 071 record, but no affidavit was produced upon the trial, the 
'^^^^' ^' Court of Common Pleas held that the plaintiff had been pro- 
perly nonsuited (6). It is stifficient to allege that the writ was duly 
indorsed for " bail," without adding " by virtue of an affidavit 
made and filed of record(c)." But in an action for an escape, where 
a latitat against Douner and two others, was stated as a latitat 
against Douner and J. Doe, this was ruled to be no variance (d). 
Where the declaration stated a writ " of the king," and on the 
trial a writ was produced, properly tested as to the date and 
the name of the chi f justice, but a mistake was made of 
George the Third instead of George the Fourth, it was held no 
variance {e). 

The declaration should also specially allege that the plaintiff 
has sustained damage by reason of the sheriff's default (/), and 
that eight days have elapsed since such default (^o-). 
Declaration In the action for an escape of a debtor on mesne process, it 

foA^./e'scape. mwst be alleged in the declaration that the debtor was arrested, 
and that the sheriff without the leave of the plaintiff allowed 
him to go at large. Under an allegation that the sheriff volun- 
tarily permitted the debtor to escape, a negligent escape may 
be given in evidence, and vice versd (/«). 

The precedents of declarations in actions for escapes usually 
aver that the defendant in the original action did not appear or 
put in special bail according to the exigency of the writ (i) ; 
but it is sufficient to state that the sheriff had not the body of 
the defendant in court at the return of the writ (A;). If the 
sheriff has returned the writ, it is usual to state the return, 

{}>) Webb D. Heme, 1 Bos. & Pul. {d) Hendray v. Spencer, cited in 

281. Sed qiuere, see Williams v. The Rex v. Pippott, 1 T. R. 238. 

Sheriff of Middlesex, Guildhall, 25lh (e) Elvin v. Drummond, 4 Bing. 

July. 1817, belore Abbolt. J., note to 278; 1 M. & P. 88, S. C. 

2 Chit. Pleading, p. 205, 3d edit. la (/ ) Kandell v. Wheble, 10 Ad. & 

an action for escape, the declaration Ell. 719; 2 P. & D. 602 S. C. ; 

staled the writ to have been indorsed Brown v. Jarvis, 1 M. & W. 704; 

fir 24/., but the writ when produced Williams v. Mostyn, 4 M. & W. 145. 

was 24/. and upwards, besides, &c., (g) Randell t'. Wheble, supra, 

this was held no variance. And see (h) Sir Ralph Bovey's case, 1 

Wi^ley D.Jones, 5 East, 440; Stark. Vent. 217 ; 3 Keb. 55, S. C; Bona- 

on Evid. part 4, p. 1336, n. (o). The fons v. Walker, 2 T. R. 126; O'Neil 

allegation that the debt was sworn to v. Marson, 5 Burr. 2812. 

is unnecessary; Whiskard v. Wilder, (i) See precedents, 3 Went. 456, 

1 Burr. 330. 482 ; 2 Chitt. Plead. 554, 7th edit. 

(c) Nightingale v. Wilcoxon, 10 (A:) Appleton v. Burr, Cro. Eliz. 

B. 8cC. 202; 4 Bing. 510, S. C, in 289; Stovin v. Perring, 2 Bos. &c 

enor. Pu'. 561. 



ACTIONS AGAINST THE SHERIFF FOR ESCAPE, &C. 18c 

but this seems to be unnecessary, as the escape is the gist of the chap. vi. 

.,, SECT. V. 

action (t). 



In an action against a sheriff for not arresting the debtor in an action 
when he had an opportunity, it should he alleged that the ing the de- 
debtor was within the sheriff's bailiwick, and might have been 
arrested if the sheriff had chosen so to do, yet the sheriff would 
not, although often requested, arrest the defendant (??i). In 
such action it is not necessary to allege that the sheriff had no- 
tice that the defendant was in his bailiwick (?i). 

The plea of not guilty, in an action for an escape on a bail- pieaa. 
able capias, will operate as a denial of the neglect or default of 
the sheriff or his officers, but not of the debt or preliminary 
proceedings ; and in an action for not arresting, or for not as- 
signing the bail-bond, the plea of not guilty will operate as a 
denial only of the breach of duty or wrongful act alleged to 
have been committed by the defendant, and not of the facts 
stated in the inducement (o). If any of those facts, therefore, 
e. g. the issuing of the writ, the delivery thereof to the sheriff, 
the arrest, or the taking of the bail-bond, are denied, they must 
be specially traversed. 

In an action against a sheriff for an escape on mesne process Evidence in 

1 1 !• \ such actions. 

the plaintiff must (if called upon to do so by the pleaduigs) 
prove the cause of action in the original suit, the issuing and 
delivery of the writ to the sheriff within a month after the date 
thereof(p), the arrest and the escape. In the action for not 
arresting a debtor, he must in like manner prove the original debt 
for which the process issued, the writ and delivery to the sheriff, 
notice to the officer that the debtor was in his bailiwick, and 
that he refused to arrest him. In the action for not assigning 
the bail-bond, the same evidence of the debt, and of the issuing 
and delivery of the writ to the sheriff, is necessary as in the two 
preceding actions; and the arrest and the giving of the bail-bond, 
with the demand and refusal to assign the bond, are also, if tra- 
versed, necessary to be proved in order to support such action. 
The plaintiff must prove his cause of action against the 

(0 2 Saund. 155, n. (5). v. Macnamara, 5 Dowl. & Ry. 95. 

(to) See precedents, 2 Chin. Plead. (o) Reg. Gen. H. T. 4 \V. 4. 

340, 3d edit. ; 8 Went. 487, 501. ( ]>) Randell v. Wheble, 10 Ad. & 

(«) Dean and Chapter of Hereford Ell. 719 ; 2 P. & D. 602, S. C. 



186 sheriff's duty on a bailable capias. 

CHAP. VI. debtor in the original action (q) ; and any evidence which would 

'^'^^"^' ^- be admissible against the defendant in the original action will 

Proof of the ^g evidence in the action against the sheriff (r) ; even an admis- 

original cause ° . ^ p i j t_ 

of aciioii. sion of tlie debtor as to the existence and amount of the debt, 
made previously to the default, is evidence for this purpose ; 
thus, where the debtor was sued as the drawer of a bill of ex- 
change, proof of the acknowledgment by him that he received 
notice of the dishonour, is evidence of that fact in an action of es- 
cape against the sheriflr(s). So also, an acknowledgment of the 
debt made after the arrest and before the escape would be evi- 
dence against the sherifF(<). 
Proof of Uie If the proccss has been returned and filed, an examined copy 
issimig o le ^^ ^j^^ ^^.^ ^^^ return will be sufficient evidence of the issuing 
and delivery of the writ(?i). If the writ has not been returned, 
as regularly it ought to be, the plaintiff will have to establish 
that fact by proof of the requisite search at the treasury ; and 
after proving the delivery of the writ to the under-sheriff, or to 
his deputy in London (x), or at the sheriff's office, and a notice 
to produce the original, secondary evidence of the process will 
be admitted (?/). 

The indorsement by the sheriff of non est inventus is sufficient 
evidence of the delivery of the writ to him (2). 
Proof to In order to prove the default in the sheriff, he must be con- 

sheriff with nected with the officer who suffered the debtor to escape, or who 
refused to arrest him, by proving the issuing of a warrant from 
the sheriff's office to arrest the defendant. 
Proof of the In an action for an escape, direct evidence that the debtor 
was in the custody of the sheriff or his officer, and by him suf- 
fered to escape, must be given. The proof, however, of the 

(a) Alexanders. Macauley, 4 T.R. Tildar v. Sutton, Bull. N. P. 66; 

61 1; Parker v. Fenn, 2 Esp, N. P. C. M'Neil v. Richard, 1 Esp. N. P. C. 

476, n. As to what has been held a 269 ; Jones v. Wood. 3 Camp. 229 ; 

variance between the proof and the Fairlie t;. Birch, 3 Camp. 397. 
statement of the debt, see ante, 183, (x) Woodland v. Fuller, 11 Ad. & 

n.iy). 2 Lev. 85; Bull. N. P. 66; Ell. 859. 
5 Esp. N. P. C. 162. (y) 2 Phill. Evid. 222. See also 

(r) Gibbon v. Coggon, 2 Camp. Stark. Evid. part 4, 1335. As to 

188 ; Sloman v. Heme, 2 Esp. N. P. what shall be a vaiiance between the 

C. 695. allegation and proof of the process, 

(s) Williams v. Bridges, 2 Stark. see ante, 183. 
42. (z) Blatch v. Archer, Cowp. 63 ; 

{t} Rogers v. Jones, 7 B. & C. 89, See also Cook v. Round, 1 M. & Rob. 

Bayley, J. 512, Tindal, C. J. 

(m) Blatch V. Arciier, Cowp, 63; 



the oliicer. 



escape. 



ACTIONS AGAINST THE SHERIFF FOR ESCAPE, &C. 187 

sheriff's return of cep'i corpus, and that the party neither put in chap. vi. 

bail above, nor was in the sheriff's custody at the return of the 

writ, will dispense with such evidence (6). 

The arrest may be proved by producing the sheriff's return 
of ce^n corpus et jmratum habeo, and the latter words of the 
return will not preclude the plaintiff from proving that the pri- 
soner was at large after the return, and no bail-bond lodged 
with the sheriff (c). It is no answer to a voluntary escape on a 
bailable capias to say that the debtor was arrested by the plain- 
tiff on a second capias directed to another sheriff, and that he 
authorized his discharge from such second capias without a bail- 
bond or deposit of the debt and costs (f/). 

Proof that the officer had an opportunity to arrest the debtor Proof of 
and neglected so to do, is necessary in the action for not arresting, a^rre'st de- 
It is the officer's duty to search and make the arrest, therefore 
if the debtor follows his daily occupation and does not abscond, 
the sheriff is responsible ; the sheriff, or under-sheriff, or baihff, 
who has the execution of the writ, must however be aware of 
the fact that the defendant is within the county (e). The evi- 
dence in such action generally is, that the bailiff was informed 
where the debtor was to be found ; notice to the under-sheriff's 
agent in town will not be sufficient notice to the sheriff(/). 

The writ being, since the Uniformity of Process Act, return- 
able immediately, the sheriff has not, as of course, the whole of 
the iTionth from the issuing to execute it, but he must arrest as 
soon as he reasonably can(^). Where the declaration was for 
an escape, and the evidence was of a neglect to arrest, the judge 
at nisi prius refused to allow an amendment under 3 & 4 Will. 4, 
c. 42, s. 23, but allowed the case of negligent omission to arrest 
to be proved, which was done, and the finding of the jury, with 
sol. damages, was specially indorsed on the record under sect. 
24, and the court afterwards gave judgment for the plaintiff ac- 
cording to the right of the case, the variance being immaterial, 
and the defendant not being prejudiced in his defence (A). 

(h) Fairlie v. Birch. 3 Camp. 397 ; (e) 2 Phil. Evid. 222, 1st edit. ; 

but a return of non est itnentus is Staik. on Evid. part 4, 1339. 

only evidence of the delivery of the (/) Gibbon v. Coggon, 2 Camp, 

writ to the sheriff ; Cowp. 65. See 189. 

Adey v. Bridges, 2 Starkie, 189. (g) Brown v. Jarvis, 1 M. & W. 

(c) Neck V. Humphrey, 3 Ad. & 704. 

Ell. 130. (h) Guestt;. Elwes,5A.& E.118. 

id) Woodman i-. Gist, 2 Jur. 942. 



188 sheriff's duty on a bailable capias. 

CHAP. vr. In the action for not assigning tlie bail-bond, the fact that the 

^^'^■^' ^' debtor gave a bail-bond should be regularly proved. Notice to 

Evidence of produce the bond should be given: and the request to assign it 

not assigning ' . ° . 

tiie bail bond, made at the under-sheriff's office, with the refusal, should be 

proved. 
Admissions xhc admissioHS of an escape by the under-sheriff are evidence 

of the under- . 

eheriff. in an action against the sheriff for an escape (i) ; but a mere 

assertion at the under-sheriff"s office that no bail-bond had been 
taken is not conclusive evidence of that fact in an action against 
the sheriff (A:). The admissions of a sheriff's bound bailiff are no 
evidence in an action against the sheriff, until the connection 
between the sheriff and the bailiff be proved (/). But when 
once the bailiff is identified with the sheriff by evidence, then 
whatever the bailiff had admitted in evidence against the sheriff, 
as admissions of the bailiff when asked by the plaintiff 's attorney 
why he did not execute the writ, are evidence against the 
sheriff (»i) : so declarations made by the bailiff whilst he has the 
debtor in his custody, are evidence in an action against the 
sheriff(w). 

Proof on (he It is Competent for the defendant (the sheriff), the facts being 

defendai'iu propcrly pleaded to enable him to do so, to show that bail above 
were put in of the term in which the writ was returnable, or that 
the defendant was rendered in due time (o). If the action be 
brought for not arresting the debtor, or for an escape, the sheriff 
may defeat the action by showing that he took a bait-bond on 
the arrest (/;). But in such case he must prove that he took a 
valid bail bond (q). 

Damages. As the plaintiff, in an action for an escape, is only entitled to 

recover what damages the jury choose to give him, he must prove 
any damnification that he has sustained by the sheriff's de- 
fault (r). And he must prove some damnification, to enable 
him to recover at all (.v). 

(i) Yabsley v. Doble, 1 Ld. Raym. (o) Allingham v. Flower, 2 Bos. & 

190; 2 Phill, Evid. 218, 1st edit. Pul. 246. 

(k) Mendez v. Bridges, 5 Taunt. (p) Mendezi;. Bridges, 5Taunt.325. 

325. (<j) Holden v. Raphael, 4 A. & E. 

(/) Drake v. Sykes, 7 T. R. 113. 228. 

(m) North v. Miles, 1 Camp. 389. (r) Barker v. Green, 2 Bing. 317. 

(n) Bowsher v. Galley, I Gamp. (s) Williams i). Mostyn, 4 M.&; W. 

391, n. 145. 



( 189 ) 



CHAPTER VII. 

CAPIAS AD SATISFACIENDUM. 

Sect. I. — In what Cases it lies — The Arrest — The Sheriff's Duty 
after the Arrest. — Poundage. — Return. — Prisoner, 
how discharged. 

Sect. II. — Escape. — What shall he said to he an Escape. — When 
the Sheriff shall he excused. — Voluntary and neg- 
ligent. — Of the Action for Escape; hy whom, against 
whom, it lies. — Declaration. — Pleas. — Evidence. — 
Action over, by the Sheriff for his Indemnity, where 
the Defendant has escaped. 



Section I. 
Ca. Sa. how executed. 

The writ of capias ad satisfaciendum is a writ of execution of ihe nature 
directed to the sheriff, commanding him to take the body of the °* •''«-«"'"• 
defendant, and him safely keep, so that he may have his body 
in court immediately after the execution thereof, or on a return 
day named in the writ, to satisfy the plaintiff. 

The writ lies in all cases within a year from the time of the When it lies, 
judgment where a capias ad respondendum would have lain before 
the passing of the 1 & 2 Vict. c. 110 ; and in several cases 
where a capias ad respondendum would not lie before the passing 
of that statute (a). Thus a ca. sa. always lies against an attor- 
ney, although before the passing of the 1 & 2 Vict. c. 110, an 
attorney could not be holden to bail (h). An infant (c) or a feme 
covert (d) is liable to be taken on a ca. sa. ; but if the judgment 

(a) For the authority by which the (b) Chit. Aichb. Practice, 7th ed. 

capias in the several actions is given, 449. 

see Chitty's Archbold's Prac. 448,7th (c) Gardiner u. Holt,2Stra. 1217; 

ed. And see IBac. Abr. Execution Madox j;. Eden, 1 Bos. & Pul. 480 ; 

(C) 3. A r«. sa. does not lie in an see also Finlay v. Jovvle, 13 East, 6 ; 

execution of damages in dower ; Tidd's Dow v. Clark, 2 Dowl. 302. 

Prac. 1066, 8th edit.; 3 Salk. 286. (d) Tidd's Pr. 1066, 1067, 8th ed. 



190 CAPIAS AD SATISFACIENDUM. 

CHAP. VII, vvas obtained against the husband and wife (e), the courts will, 

1— ° — in their discretion, discharge the wife if she be taken on a ca. 

sa., unless she has separate property out of which the demand 
can be satisfied ; but before she will be entitled to her discharge 
it must appear that slie has no sucli separate property, or that 
there is fraud and collusion between the plaintiff and her hus- 
band to keep her in prison (./). Where grounds are shown for 
supposing that the wife has separate property, the onus of 
proving that she has none is thrown upon her, and she must in 
her affidavit swear not only that she is not entitled, but also 
that no person is entitled in trust for her (g). So also bail may 
be taken in execution on a ca. sa. (h). So may executors or 
administrators, if a devastavit has been returned (?), but not 
otherwise (j). 
When it does The 7 & 8 Vict. c 96, s. 57, enacts, " that from and after the 
passing of this act, no person shall be taken or charged in exe- 
cution upon any judgment obtained in any of her majesty's 
superior courts, or in any county court, court of requests, or 
other inferior court, in any action for the recovery of any debt 
Where sum whercin the sum recovered shall not exceed the sum of twenty 
nnrier'^2o;.'^ pounds, cxclusive of the costs recovered by such judgment(A:)." 
And sect. 59 enacts, " that if at any time it shall appear to the 
judge who shall try such cause, being either a judge of one of 
the superior courts, or a barrister or attorney at law, that the 
defendant, in incurring the debt or liability which may be the 
subject of demand, has obtained credit from the plaintiff under 
false pretences, or with a fraudulent intent, or has wilfully con- 
tracted such debt or liability without having at the same time a 
reasonable assurance of being able to pay or discharge the same, 
or shall have made, or caused to be made, any gift, delivery, or 

(e) Seciis, where the action was Clark, 2 Taunt. 1 13, and see2 Marsh, 
commenced against the wife wlien 187, n. 

sole, and judgment is, after her mar- (i) Chit. Arch. Pr. 7th ed. 882. 

riagp, obtained against her in her (j) Ibid.; Ward v. Thomas, 2 

name when sole; Beynon t). Jones, 15 Dowl. 87. 

M. cSt W. 56f). {k) If the plaintiff sue upon the 

( f) See Chalk v. Deacon, 6 B. M. judgment for debt and costs, and in 
128; Spaikes v. Bell, 8 B. & C. 3 ; that action recover to the amount of 
Bayley, J., Hoad v. Matthews, 2 20/., the defendant may be taken in 
Dowl, 149; Chit, Arch. Pr. 7th ed, execution on the judgment in that 
449. action ; Hopkins v. Freeman, 13 M. 

(g) Ferguson v. Clay worth, 6 Q.B, & W, 372 ; Joseph v. Buxton, 1 C. 
269, B.221; Mason v. Nicholls, 14 M. 

(/i) Goodchild v. Chaworlh, 2 Str. & \V. 118, 
822 ; 3 Salk. 286 ; Troughton & 



HOW EXECUTED. 



191 



transfer of any personal property, or shall have removed or con- chap. vn. 

cealed the same with an intent to defraud his creditors, or any '—^— 

of them, it shall be lawful for such judge, if he shall think fit, to 
order that such defendant may be taken and detained in exe- 
cution upon such judgment in like manner and for such time as 
he might have been if this act had not been passed, or for any 
time not exceeding six calendar months in any case in which the 
time for which a person taken in execution under process issuing 
out of any such court could lawfully be detained in custody, 
according to the constitution of the said court, before the passing 
of this act, in less than six calendar months, whether or not exe- 
cution against the goods and chattels of such defendant shall 
have issued as hereinafter provided (I)." 

But a ca. sa. does not lie against members of the royal family, ^1^^^"^ pPj'; 
or their servants, against peers or peeresses, or members of the sons. 
House of Commons during the time of privilege (m); and a ca. sa. 
issued against a member of the House of Commons, in an action 
of assumpsit, is irregular, even although it is issued in order to 
ground proceedings to outlawry, and is delivered to the sheriff 
with that view, and with a direction to be returned non est in- 
ventus (n). Neither will a ca. sa. lie against ambassadors or 
their servants (o) ; or against corporators or hundredors (p); or 
against executors or administrators, for debts of their testators 
or intestates, unless a devastavit be returned {q) ; or against an 
heir for a debt to be levied of the lands descended (r) ; or against 
seamen or soldiers in her majesty's service, unless in actions for 
debts for 30/. or upwards, contracted before they entered the 
service («) ; or against bankrupts who have obtained their certi- 
ficates for any debt which might have been proved under their 
commission if) ; or against persons discharged under the insolvent 

(/) See 8 & 9 Vict. c. 127, and i;. Alexander, 9 Bing. 412. 

9 & 10 Vict. c. 95. (o) See ante, p. 136. 

(m) Ante, p. 134,135. See 1 Leon. (p) Chit. Arch. Pr. 7th ed, 449, 

173; BartleU v. Hebbes, 5 T. R. 473; Tidd's Prac. 1066, 8th ed. 

686. (q) Brooke's Abr. Execution, 12; 

(n) Cassidyv. Sleuart, 2 Man. & Tidd's Prac. 1066, 8th edit.; Chit. 

G. 437 ; see also Butcheri;. Steuart, 1 Arch. Pr. 882, 7th ed. ; Ward j;. Tho- 

Dowl. N. S. 620. But where judg- mas, 2 Dowl. 87. 

nient of respondeas ouster was given (»') 2 Saund. 7, n.(4). 

onapleaof peerage, and judgment was (s) See the statutes and cases col- 

afterwards obtained for the plaintiff, lected, Chit. Arch. Pr. 7th ed. 474, 

the court refused to set aside a ca. sa. 475. 

which was issued against the defend- (t) 5 «Si 6 Vict. c. 122, s. 42. 
ant on an affidavit of peerage ; Digby 



192 CAPIAS AD SATISFACIENDUM. 



SECT. 



CHAP. VII. act(M), for debts contracted before such discharge; or against an 
insolvent under the judgment entered up on the warrant of 
attorney executed by him on obtaining his discharge (a;) ; or 
against any person who has obtained an interim order of pro- 
tection under the provisions of the statute 5 & 6 Vict. c. 116, 
s. 13, during the time mentioned in the order (y). 

If any person privileged from arrest (excepting members of 
parliament and ambassadors) be arrested on a ca. sa., it is not 
advisable to discharge such person, unless under the order of the 
court or a judge, for the sheriff does it on his own responsi- 
bility (z). 

A writ of ca. sa. issued before the return of a fi. fa., which 
has been executed on the defendant's goods, is irregular (a), 
even though the whole amount levied under the Ji. fa. has been 
swallowed up in discharging the landlord's claim for rent, and in 
part payment of the expenses of the execution (i). But if no 
levy at all has been made on the defendant's goods — thus if the 
sheriff seizes under the f. fa. goods already in custodia legis, 
or assigned under a bill of sale (c) ; or goods which the de- 
fendant declares " he has sold to cheat the plaintiff," and so 
induces the sheriff to withdraw from possession (d) ; in such 
case the ca. sa. may be executed before the return of the 
fi. fa. (e). But a ca. sa. may issue before the return of, or even 
at the same time as a fi.fa., although they cannot both be exe- 
cuted (/), A defendant arrested on a ca. sa., and discharged 
on account of irregularity, may be taken on a second ca. sa. on 
the same judgment (g-). A ca. sa. cannot issue after an elegit, 
if lands have been taken under such writ (/«). But the sheriff 

(u) 1 8c 2 Vict. c. 110, s. 90. (d) Knight v. Coleby, 5 M. & VV. 

(i) See Riveltv. Lark, 3 Dowl. 62. 274. This case was decided upon the 

(y) See Marsh V. WooUey, 1 Dowl. ground that the defendant, having once 

& L. 84. denied the goods to be his, could not 

(s) Sherwood v. Benson, 4 Taunt. afterwards set up the fraudulent sale 

631; see also per cur. in Watson n. to show that they were liable to seizure. 

Carroll, 4 M. & \V. 592. (e) See the cases above cited; also 

(a) Millert).Parnell, 6Taunt. 370; 2 Man. & G. 914, note (c). 
2 Marsh. 78, S. C. ; Chapman v. (/') Prinnrose n. Gibson, 2 Dowl. 
Bowlby, 8 M. & VV. 249. & Ry. 193. 

(b) Hodgkinson v. VVhalley, 2 C. (g) Merchant!;. Frankis, 3Q. B. 1. 
&J.86; 1 Dowl. 298, S.C; Lawes (h) Bac. Abr. Execution (D); 
V. Codrington, 1 Dowl. 30. otherwise if the sheriff' return nihil as 

(c) Dicas V. Warne, 2 Dowl. 762; to the lands, see 1 Archbold's Prac. 
llBing.341,S.C.; Edmond t). Ross, 446, 7lh edit. 
9 Price, 512. 



WHEN EXECUTED. 



193 



may justify arresting a defendant under an irregular ca. sa., for chap. vii. 

he is bound to execute the process of the court without in- __!^^llll_ 
quiring into its regularity (i). 

The writ of ca. sa. runs until it is executed, and therefore an When to be 

. executed. 

arrest may be made upon it even although more than a year 
has elapsed since its date (k). 

The arrest on a ca. sa. may be made at the same time, in the 
same places, and in the same manner, as an arrest on mesne pro- 
cess, and the sheriff's duty in either case is the same (I). In an 
action for negligently omitting to arrest a debtor on a ca. sa., 
the plaintiff will be entitled to nominal damages, even though 
he has sustained no actual damage, if the jury find that the she- 
riff has been guilty of a default (m). 

A writ of ca. sa., issued in the lifetime of the judgment 
creditor, may be executed after his death, for no judicial writ 
after judgment is abateable by the death of him who sues it(?i). 

Where a writ of ca. sa. is delivered to the sheriff with an 
indorsement " to be returned 7wn est inventus," the sheriff is, 
notwithstanding such indorsement, bound to arrest and detain 
the party, if he either render himself or is rendered by his bail; 
the meaning of such an indorsement being only that the sheriff 
is not to look for the party (o). The sheriff has no right to 
execute a ca. sa. after direction from the plaintiff not to do 
so(p). 

Where a defendant is in the custody of the sheriff under a 
writ, the delivery to the sheriff of a ca. sa. against the defend- 
ant in another suit is quite sufficient to complete the execution 
on such ca. sa. against such defendant, without any admission 
or acknowledgment on the part of the sheriff ((y) 

The sheriff, in executing a ca. sa., as we have seen, is bound, 
if necessary, to take the posse comitatiis, and therefore if the 
defendant be rescued out of the sheriff's custody, it is an 

(i) See 2 Tidd's Prac. 1072, 8tli Cleve v. Veer, do. Car. 459; Ellis 

edit. V. Griffith, 16 M. & W. 106 ; see also 

(/c) Simpson u. Heath, 5 M. & W. Folhergill v. Walton, 4 Bing. 711. 

631; Greenshields i. Harris, 9 M. & (o) Magnay v. Monger, 4 Q. B. 

W. 774; Thomas v. Harris, 1 Dowl. 817. 

N. C. 793. (p) Baiker r. St. Quintin,l-2]\I.& 

(/) See ante, 125, et seq. W. 441. See also Howard v. Canty, 

(m) Clifton v. Hooper, 6 Q. B. 2 Dowl. & L. 115. 

408. (q) Owen v. Owen, 2 B. & Ad. 

(n) Thorogood's case, Noy, 73 ; 805. 



194 



CAPIAS AD SATISFACIENDUM, 



The sheriff's 
duty after 
the arrest. 



CHAP. VII. escape (r). If tlie defendant be sued to judgment by a wrong 

' name, and the ca. sa. be also against him by such wrong name, 

the sheriff is compelled to arrest the defendant, for by not 
pleading in abatement the defendant has admitted that to be his 
name(s). If the sheriff arrests the wrong party under a writ in 
consequence of a false representation made to him that he was 
the right party, no action will lie against the person making 
that representation, unless at the time of making it he knew it 
to be false, or made it fraudulently (t). 

It is the sheriff's duty to keep every person taken by him by 
virtue of a writ of execution in salvdet arctd custodhi; for if the 
sheriff allow a defendant, arrested by him on a capias ad satis- 
faciendum, to go at large for the shortest time, either before or 
after the return-day of the writ, without the consent of the 
plaintiff, it is an escape, for which the sheriff is answerable (?<). 
If the sheriff let a defendant arrested by him on a ca. sa. go at 
large on bail or baston(i'), or even on payment of debt and costs 
to himself, (the sheriff) (x), it is an escape. The officer may 
carry a person arrested on a ca. sa, to the county gaol imme- 
diately/ after the arrest, for the statute S2 Geo. 2, c. 28, only 
applies to persons arrested on mesne process (^). If the sheriff 
carry a defendant in his custody out of the county, excepting 
in conveying him by the most convenient route to the county 
gaol, he will be guilty of an escape (;:), and likewise liable to 
an action for false imprisonment (a). So if the bailiff of a 
liberty convey a defendant arrested by him out of his liberty to 
the county gaol, it is an escape (6). It is an escape to allow a 
defendant arrested on a ca. sa. to go about his affairs, even, as 
it would seem, in the custody of an officer (c). But the sheriff 
is not hound to take a person arrested on a ca. sa. to the county 



(V) Aute, 73. 

(i) Crawford v. Satchvvell, Stra. 
1218; Reeves v. Slater, 7 B.&C. 
486; Fisher v. Magnay, 1 Dovvl. & 
L. 40. 

(f) Collins V. Evans, 5 Q B. 820. 

(u) Doctor & Stud. 18 ; Bro. Abr, 
Escape ; Rol. Abr. Escape (C ) ; Boy- 
ton's case, 3 Rep. 44 ; stat. West. 2, 
c. 11. 

(v) Rol. Abr. Escape (A), 3, 4, 
(D) 9. 

(.t) Slackford v. Austin, 14 East, 
468. See also Crozier v. Pilling, 4 



Barn. & Cr. 26 ; 6 D. & R. 129, S. 
C; Wooden n. Moxon,6 Taunt. 490; 
2 Marsh. 186, S. C. 

(y) Evans v. Atkins, 4 T. R. 555. 

(s) Boston's case, 3 Rep. 44. 

(«) Bro. Escape, 11, — per Choke 
and Billing. 

(6) Boothnnan v. The Earl of Surry, 
2 T. R. 5. 

(c) Bentoni>.Sulton,l Bos. & Pul. 
24; Balden v. Temple, Hob. 202; 
Piatt t', Locke, Plowd. 35 ; Hawkins 
V. Plomer, 2 Bla. Rep. 1048. 



HOW EXECUTED. 



195 



gaol immediately ; he may confine him in a lock-up house until chap. vn. 
the return of the writ, without being liable to an action for an ^^^''' '• 
escape, although such lock-up house is not the house of the 
officer to whom the warrant is directed (r/). Whenever the 
sheriff or his officer receives an order for the discharge of the 
defendant, search should be made in the sheriff's office to ascer- 
tain whether or not there be any other writs lodged against the 
defendant ; for a person in custody at the suit of one plaintiff 
is in custody at the suit of any other person who delivers a writ 
to the sheriff before the discharge of the defendant (e). And 
the sheriff has a reasonable time for the purpose of making sucli 
search : therefore, where an order for the defendant's discharge 
was received at the gaol where he was confined on a Saturday, 
and forwarded to the under-sheriff, who lived at some distance ; 
and on the Sunday the latter sent to the gaoler a warrant of 
detainer against the defendant under another writ of ca. sa. 
issued on the Saturday ; it was held that he was not entitled to 
be discharsed on the "round that the service of the warrant on 
a Sunday was void(/). 

The amount to which the sheriff is entitled for executing a Poundage 
writ of ca. sa. has been already shown (g)\ but although a writ 
of ca. sa. be improperly indorsed to levy " sheriff's poundage 
and officer's fees," the defendant will not be discharged out of 
custody unless he has paid or tendered the proper amount (/<). 
If the plaintiff's attorney employ the officer to make the cap- 
tion, and it is usual for him to pay him under the circumstances, 
the officer may maintain an action against the attorney for his 
caption fees and conduct money (i). But in general, and with- 
out such proof of employment of the officer, the client, not the 
attorney, is the person liable for the sheriff's fees on the ex- 
ecution of a ca. sa.{k). 

The sheriff does not in general return a writ of ca. sa. with- 

(d) Houlditch v. Birch, 4 Taunt. (h) Pitcher v. Roberts, 2 Dowl. 
608. N. S. 394. 

(e) Ante, 130. Frost's case, 5 (i) Newton v. Chambers, 1 Dowl. 
Rep. 89 ; Benton v. Sutton, 1 Bos.& & L. 869. See also Foster v. Biake- 
Pul. 24. See also Watson v. Carroll, lock, 5 B. & C. 328; Townshend v. 
4 M. & W. 592. Carpenter, Ry. & M. 314; 2 C. & 

(/) Samuel v. Buller, 1 Exch. R. P. 118, S. C. ; Walbank v. Quarter- 
439. man, 3 C. B. 94. 

(?) Ante, 111. (k) Maybery v. Mansfield, 16 Law. 

J. Q.B. 102; «)ite, 115. 

o2 



196 CAPIAS AD SATISFACIENDUM. 

CHAP. VII. out being ruled so to do, for llie writ is a sufTicient justification 
^^^'^- '• for acts done under it, althou»li it be never returned (/)• A 

Wiuii the rule may be obtained at any time within six months after the 

obh'^gL'.i'i'.. expiration of the office of the sheriff, for him to return the writ; 

'cu"Z.'' and if the sheriff do dot comply with the rule, he is liable to an 
attachment (??/.); but the court will not assent to an application 
on the part of the defendant against the sheriff to return a ca. i«., 
unless special grounds be shown for the application (?(), 

cepi corpus. If tliG sheriff has taken the body of the defendant, he should 
return ccp'i corpus (o), for which return, if untrue, the sheriff 
will be liable for an escape, as tlie return is conclusive evidence 
of the arrest (20- If the sheriff had not an opportunity of 
arresting the defendant, he should return non est inventus (q). 
If the defendant has been taken under the writ, but at the return of 
the writ is too ill to be removed, we have already seen (r) that the 
sheriff should return " languidiis," and such return should show 
that the sickness continued up to and at the time of the re- 
turn (s). The court has no power to allow the sheriff any 
extra costs incurred by him in keeping in custody a person, ar- 
rested by him on a ca. sa., who is too ill to be removed (<). 

Privilege. If the defendant were privileged from arrest on a ca. sa., a 

return of such privilege would be good (ti), although it leaves 
the sheriff to the risk of contesting with the plaintiff the truth 
of such return ((;) ; therefore, excepting in cases of members of 
the royal family, peers, members of the House of Commons, 
ambassadors, or their servants (w)> it is not advisable for the 
sheriff to take notice of the privilege, but to arrest the defendant, 

(/) Hoe's case, 5 Rep. 90; Doiley bailiwick," is irregular ; Rex v. The 

V. Jolifle, Lane, 52; Rowland v. Sheriff of Kent, 2 M. & W. 316. 

Veale, Cowp. 18 ; 10 East, 82 ; Cro. See also 2 Man. & G. 439, note (e). 

Eliz. 237. (r) Ante, 96. 

(m) As to tiie rule lo return the (s) Ibid. See aLo Jones v. Rob- 
writ, and the granting the attachment, inson, 2 Dowl. N. S. 1044; 11 M. & 
and as to returns in general, see ante, W. 758, S. C. 
p. 81, et seq. (0 Jones v, R.obinson, supra. 

(n) Williams v. Webb, 2 Dowl. N. (u) Inge i'. Herrick, cit. Doug. 675. 

S. 904 ; D.iniels !). Gompertz, 2 Gale (v) Sherwood v. Benson, 4 Taunt. 

& D. 751 ; 3 Q. H. 322, S. C. 631. For the court will not slay pro- 

(()) See form of return, poi^ Append. ceedings in an action of escape brougiit 

(/}) Stark. Evid. pait iv. 1346. against the sheriff in such case; id. 

See also 3 Camp. 397. ibid. 

(q) This form of return should be (w) For in such case tlie sheriff is 

strictly adhered to. A return tiiatthe punishable if he arrest ihem on a cu. 

defendant " is not lo be found in my sa. See antr, 134. 



KETUKN. 197 

and leave him to apply to the court to be discharged if he be chap. vh. 
entitled to it (a); and he may apply for such discharge even _i;!:!l!llL_ 
though he has been guilty of laches (?/). 

If the ca. sa. do not contain a non omittas clause, and the she- 
riff has sent his mandate thereon to the bailiff of a liberty to be 
executed, the proper return will be a return of mandavi halUvo, 
with the answer of the bailiff if he have made any ; if not, with 
nullum dedil responsum (2). So also if the bailiff makes an in- 
sufficient return, the sheriff should return nullum dedit respon- 
sum{a). But if the sheriff might himself have entered the 
liberty under the writ, the return of mandavi hallivo would be 
insufficient (b). 

The return to a ca. sa. that the defendant was rescued, either 
before or after he was conveyed to prison, is bad, for the sheriff 
is obliged to be provided with sufficient force (c). Therefore, 
if the sheriff make such return, he is liable to an action for an 
escape ((/). 

After being arrested on a ca. sa., it is the sheriff's duty to ^^^^"^"^^^"^j''; 
keep the defendant in close custody until the plaintiff authorizes 
his discharge, or the prisoner is removed by habeas corpus, oris 
discharged by other lawful means; but if the plaintiff autho- 
rize the discharge of the defendant, and there be no detainers 
against him, the sheriff is bound to discharge him. The at- 
torney for the plaintiff has not, however, any right to authorize 
the sheriff to discharge the defendant (e), for the attorney's 
duty ends when judgment is signed (f). In a case where a per- 
son delivered a discharge to the warden of the Fleet, which the 
plaintiff before the discharge of the defendant informed the 
warden had been obtained from him by fraud and countermanded 
the discharge, the warden notwithstanding released the prisoner ; 
the court decided, that as the discharge was fraudulently ob- 
tained, which the warden knew, that it was an escape ; the 
abstract question was also argued, but not determined, how far 

(x) See 4 Taunt. 631. Rescue (E) 1. 

(y) Webb v. Taylor. 1 Dowl. & (d) O'Neil v. Marson, 5 Bun. 

Low. 676. 2812; EUiol v. Duke of Norfolk, 4 

(z) See forms of returns, Append. T. R. 789 ; Roll. Abr. Escape (D) 3. 

c. 7. And see ante, p. 98. See also ante, 95. 

(a) Ante, 99. (e) Savory d. Chapman, 1 1 Ad. & 

(6) Fitz. Reiorn,53. Ell. 829. See also Davis v. Jones, 5 

(c) May I'. Proby, Cro. Jac. 419; Dowl. 604, Tindal, C. J. 

Cora. Dig. Rescous(D) 7; Bac. Abr. (/) 5 Dowl. 504, Tindal, C. J. 



198 CAPIAS AD SATISFACIENDUM. 



CHAT. VII. 
SECT. I. 



the authority of the plaintiff for the discharge of the prisoner 
was countermaiulable before it was executed (g). 

Where a defendant, being in the custody of the marslial, was 
brought up by habeas corpus cum causd before the Central 
Criminal Court to plead to an indictment, and was committed to 
Newgate and afterwards bailed, and the keeper of Newgate 
then, without any fresh warrant, redelivered him to the marshal, 
who received him into his custody, from which custody he 
escaped ; it was held that the marshal was not liable to an es- 
cape, for his custody was at an end when the defendant's body 
was given up under the habeas corpus, and he could not law- 
fully receive him again without a fresh commitment (h). 

With regard to prisoners in custody, who have obtained pro- 
tection from process by a final order, it is by 7 & 8 Vict. c. 96, 
s. 23, enacted, '' that if any such petitioner, being a prisoner in 
execution at the time of filing his petition, shall be detained in 
prison for any debt or claim in respect of which he is protected 
from process by his final order, it shall be lawful for the com- 
missioner to order any officer who shall have such petitioner in 
custody by virtue of such execution to discharge such petitioner 
without exacting any fee ; and such officer shall be hereby in- 
demnified for so doing." 

With regard to persons in execution upon judgments for sums 
under 20/., the 7 & 8 Vict. c. 96, s. 58, enacts, " that all persons 
in execution, at the time of passing this act, upon any judgment 
obtained in any of the courts afoi-esaid in any action for the re- 
covery of any debt wherein the sum recovered shall not exceed 
the sum of twenty pounds, exclusive of the costs recovered by 
such judgment, shall and may, upon the application of every 
such person or persons for that purpose, made at any time after 
the passing of this act, to a judge of one of her majesty's supe- 
rior courts of law at Westminster, or to the court in which such 
judgment shall have been obtained, to the satisfaction of such 
judge or court, be forthwith discharged out of custody as to such 
execution by an order of such judge or court : provided always, 
that if it shall happen that any such discharge shall have been 
unduly or fraudulently obtained upon any false allegation of 

(g-) Holland v. Eyles, i\I. 28 Geo. man, C. J., 11 Ad. & El. 836. 
3, reported in Bac. Abr. Escape (E) {h) Coutanl v. Cliapman, 2 Q. B, 

3, 6tli edit. See also fer Lord Den- 771. 



DISCHARGE FROM. 



\DV 



circumstances, which, if true, might have entitled the prisoner to chav. vii 

be discliarged by virtue of this act, such prisoner shall, upon the 1^ 

same being made to appear to the satisfaction of the judge or 
court by whose order such prisoner shall have been so dis- 
charged, be liable to be again taken in execution, and remanded 
to his former custody by an order of such judge or court: pro- 
vided also, that no sheriff, gaoler, or other person whatsoever, 
shall be liable as for the escape of any such prisoner in respect 
of his enlargement during such time as he shall have been at 
large by means of such his undue discharge as aforesaid : pro- 
vided also, that for and notwithstanding the discharge of any 
debtor or debtors by an order of any such judge or court in 
manner aforesaid, the judgment whereupon any such debtor or 
debtors was or were taken or charged in execution shall never- 
theless remain and continue in full force, to the intent and pur- 
pose that the judgment creditor or creditors may have and take 
remedy and execution upon every such judgment against the 
property and effects of any such debtor or debtors, in such man- 
ner and form as such creditor or creditors otherwise could or 
might have done in case such debtor or debtors had never been 
taken or charged in execution upon such judgment, and It shall 
be lawful /or such creditor or creditors to have and take such 
remedy and execution (/')." 

The effect of an order of the Insolvent Court for the discharge 
of a defendant from custody as to the detainer of the ])laintiff at 
the expiration of a certain period, is to authorize the defendant's 
discharge when that period arrives ; but it does not take away 
the power of the plaintiff to release him previously, if he thinks 
fit (j). The discharge of one of two defendants under the 
Insolvent Act, does not operate as a discharge also of the 
other (/c). 

If a defendant dies in custody, the sheriff has no power to 
detain his dead body until any other claims are satisfied ; and if 
the dead body be not delivered up to his executors on request, 
a peremptory inandamm will be granted in the first instance (J). 

(t) See also 8 & 9 Vict. c. 127 ; {k) Nadin v. Battie, 5 East, 147 ; 

9 & 10 Vict. c. 95; Ex parte Foulkes, see also Raynes v Jones, I Dowl. 

15 M. & W. 612 ; Fitzball t;. Brooke, N. S. 373 ; 9 ^\. & VV. 104, S. C. 

6Q. B.873. (/) Reg. v. Fox, 2 Q. B. 246; 

(i) Ibid., per Lord Denman, C. J., Reg. v. Scott, ib. 248. 
p. 783. 



200 



CAPIAS At> SATISFACIENDUM. 



CHAP. VII. 
SECT. II. 



What is an 
escape of a 
prisoner in 
execution. 



Seciion II. 
Escape. 

If the sheriff take a prisoner arrested on a ca. sa. out of his 
county, excepting in necessarily conveying him to the proper 
gaol, or if the sheriff or gaoler allow a prisoner to go at large, at 
any time after an arrest, out of the prison, (except upon a habeas 
corpus,) either before or after the return of the writ, it is an 
escape (7/0- Thus, where the defendant, after having been con- 
veyed to the county gaol, was seen at large, this was holden to 
be an escape {n). And where the defendant was arrested, and 
was afterwards seen riding with an officer of the sheriff, (not the 
officer who made the arrest,) this was holden to be an escape (o). 
So where the defendant was taken from the county gaol, in cus- 
tody of the gaoler, to another place in the same county, in 
order to give evidence before a revising barrister, and was 
returned into gaol on the same evening, this was holden to be 
an escape (p). So the bailiff of a liberty, who has the return 
and execution of writs, is liable to an action for an escape if he 
remove a prisoner taken in execution to the county gaol, situate 
out of the liberty, and there deliver him to the sheriff (^). But 
it is not an escape in the sheriff confining the defendant in the 
lock-up house of an officer (although not the officer to whom 
the warrant was directed) for ten days before the return-day of 
the writ (r). Neither is it an escape if the defendant was, at the 
time of his going at large, unlawfully in custody of the sherifi". 
Thus, where a defendant in execution of the marshal on a ca. sa. 
was brought up under a habeas corpus cum causa before the 
Central Criminal Court, and committed to Newgate, and after- 
wards bailed, and the keeper of Newgate then, without any fresh 
warrant, re-delivered him to the marshal, who received him into 
his custody, and afterwards suffered him to go at large, it was 
held that the marshal was not liable to an action for an escape, 
the defendant, for want of a fresh warrant, not being legally in 
his custody at the time it took place ; and it was also held that 



(m) 8&9 Will.3, c. 27, s. 1. Stat. 
5 & 6 Vict. c. 22, s. 12, abolishes the 
liberty of the rules. 

(n) Balden v. Temple, Hob. 202; 
Hawkins i. Plomer, 2 Bla. Kep.1048; 
Piatt V. Locke, Plovvd. 35. 

(()) Benton v. Sulon, 1 Bos. &. 
Pul.24. 



(/;) Williams v. Mostyn, 4 M. & 
W. H5. 

((/) Boothman v. Earl of Surrey, 
2 T. R. 5 ; Hepwoilh i'. Sanderson, 
1 M. & Sc. 64; 8 Bing. 19, S. C. 

(r) Houlditch v. Birch, 4 Taunt. 
608; see also Hard. 31. 



ESCAPE. 201 

the fact of the marshal having received the defendant into his chap. vn. 

custody did not estop him from denying the legality of it (s). ^^.IlHI— 

Even if the sheriff" discharge the defendant on payment of debt 

and costs to him, without the assent of the plaintiff", it is an 

escape {t) ; but if the sheriff" had received the money, and paid 

it over to the plaintiff", it would appear however that the plaintiff" 

could not bring an action for an escape against the sheriff" (?<)■ 

The plaintiff"'s attorney has no authority, without the plain- 
tiff's consent, to give a discharge from custody ; and therefore 
if, on the bare authority of the plaintiff"'s attorney, the sheriff" 
were to discharge a defendant from custody before the plaintiff" 
had been satisfied his judgment, he would be liable for an 
escape (v). But if the judgment has been in fact satisfied, either 
by payment to the plaintiff", or to his attorney on the record, the 
defendant may be released (x). 

If the keeper of a prison, after one day's notice in writing, 
refuse to show any prisoner committed in execution to the cre- 
ditor at whose suit he was committed or charged, or to his 
attorney, such refusal shall be deemed an escape (y). It is said, 
that if a sheriff" marry a woman in execution in his custody, it 
will be deemed an escape in law (z). If a man have judgment 
against two persons, and both are taken in execution, if the she- 
riff" suff"er one of them to escape, he shall be answerable for the 
whole debt, though he has the other still in his custody (o). 

If the sheriff" permit a prisoner to escape out of execution, he 
is liable to an action for an escape, although the judgment on 
which the ca. sa. issued is erroneous {b) ; or if the ca. sa. itself 
be erroneous, the sheriff" is liable to an action for allowing a per- 
son arrested thereon to go at large (c). As if the chancellor of 

(s) Coutant v. Chapman, 2 Q. B. was held that the sheriff was liable to 

771. an action for allowing her to escape; 

(0 Slackford v. Austen, 14 East, ihid.(F)5; Whiting v. Ileynell, Cro. 

468. Jac. 657 ; Sukliff r. Reynell, 2 Bulstr. 

(m) Id. ibid. 320. Since the 5 & 6 Vict. c. 98, 

(v) Savory D. Chapman, 11 A.& E. s. 31, the sherift' would, under the cir- 

827. cumstances stated in the text, be liable 

(x) See Crozier v. Pilling, 4 R. & C. only for such damages as the plaintiff 

26. might recover in an action on the case. 

(y) Stat. 8&9 Will. 3, c. 27, s. 8. (b) Gold v. Strode, Carth. 148; 

(z) Bac. Abr. Escape (B) 3, citing 3 Mod. 324, S. C. ; otherwise, where 

Plowd. 17, but nothing to that point the judgment is reversed, then the 

can be found in that reference. sheriff is not liable for an escape, Dr. 

(a) Roll. Abr. Escape (F) 4. So Drury's case, 8 Rep. 284 ; Dalt. 563. 

where baron and feme were in custody (c) Burton v. Eyre, Cro. Jac. 289 ; 

in execution, and the feme escaped, it Weaver v. Clifford, Cro. Jac. 3 ; Yelv. 



202 CAPIAS AD SATISFACIENDUM. 

CHAP. VII. tlie diicliy of Lancaster, on a writ directed to him, make his 
^^^' "• wairant to the sheriff to have the body before the justices, in- 
stead of before the chancellor, that he might have the body before 
the justices (d) ; or if a capias be issued on a recognizance, 
where by the practice of the court it does not lie (c) ; or where, 
after a year from the time of signing judgment, a ca. sa. issues 
without a sci fa. to revive the judgment (/) ; or (before the 
3 & 4 Will. 4, c. 67,) if a term intervened between the teste and 
return of a ca. sa. (g) ; in any of these cases the process would 
be erroneous, but not void, and the sheriff would be guilty of 
an escape for suffering a defendant arrested thereon to go at 
large. So also it is no defence in an action for an escape to say 
that the judgment on which the ca. sa. was issued was obtained 
by the plaintiff as indorsee of a bill of exchange given for money 
won at play (h). But where the process is absolutely void, there, 
if the sheriff arrest the defendant and suffer him to escape, he 
will not be liable to an action (i) ; as if the court out of which 
the execution issued had no jurisdiction over the cause, this is 
no escape (k). And although in some cases the sheriff is justi- 
fied in executing a writ, yet he may not be guilty of an escape 
for discharging the defendant in his custody on such writ ; as if 
a writ of execution (before the 3 & 4 Will. 4, c. G7) bore teste 
out of term, the sheriff was justifiable, and yet he was not liable 
to an action of escape, for it was a void writ (I). 

So we have seen that a sheriff may justify arresting a party 
privileged under a writ ; and yet he would not be liable for an 
escape, if, after making the arrest, he allowed such privilege and 

42, S.C. ; 2 Bulstr. 62; Ognel v. and see Keisar v. l^rreil, 2 Bulstr. 

Pa'ston, Cro. Eliz. 165; see also per 256. 

Lord Denman, in Coutant I). Chapman, (g) Shirley v. Wright, 2Ld.Raym. 

2Q. B. 785. 775; 1 Salk. 273, S. C. 

(d) Burton i;. Eyre, Cro. Jac. 288, (/«) Lane v. Chapman, 11 A. & E. 
289. As if the writ were directed im- 966. 

mediately to the sheriff of a county (i) Nector v. Gennett, Cro. Eliz. 

palatine, and the sheriff arrested the 466; 21 Hen. 7, 16, pi. 27 ; Mar- 

defendant, and afterwards discharged shalsea case, 10 Rep. 76 a. 
him, it would appear that he would (/c) See ante, 67 et seq. And if the 

be liable to an action for an escape, sheriff were to make arrest under a 

as the writ is erroneous but not void ; writ which disclosed a want of juris- 

Id.ibid.; Jackon f. Hunter, 6T. R. diction, he could not justify under 

8j^ such writ; see Carratt v. Morley, 

(e) See cases last note but one, 1 Q. B. 18. 

Moore, 174; Cro. Eliz. 271 J 2 Saund. (/) Per Holt, C. J., Salk. 700; 

100. 2 Lord Raym. 775 ; sed qiKcre. 

(/) Bushe's case, Cro. Eliz. 188 ; 



ESCAPE. 



203 



suffered the defendant to go at large. Where a sheriff within chap. vh. 
a hberty arrested a defendant on a ca. sa. without a non om'itlas, . ^^^^' "'■ 
and suffered him to escape, the sheriff was held liable to an 
action for so doing, for the arrest was good (wi) ; and the only 
effect of its having been made within the liberty was to expose 
the sheriff to an action at the suit of the lord of the liberty {n). 

If the plaintiff appoints a special bailiff to make the arrest, 
and he does so, the sheriff is not liable for an escape from the 
custody of such bailiff before the defendant has been given into 
the actual custody of the sheriff (o). When the sheriff is ordered 
by a writ of habeas corpus to bring up the body of a person in 
his custody in execution, it is his duty to convey him by the 
shortest and most convenient road to the court at Westminster. 
If he deviate from such direct road, or let the defendant go about 
liis affairs, although he has him at the return of the habeas cor- 
jms, it is an escape (j)). And if a habeas corpus issue in one 
term to the sheriff to bring up a prisoner in his custody in exe- 
cution on the ensuing term, if he let him go at large in the mean- 
time, it is an escape (q). 

The sheriff is allowed a reasonable time to bring up a prisoner 
on a habeas corp)us, of which the court will judge (r). It is laid 
down by Lord Coke, that if a sheriff, in taking a prisoner in ex- 
ecution from his county gaol to Westminster on a habeas corpus, 
lodge him in an inn on the direct road, and the defendant of his 
own head goes at large, but the sheriff has him at Westminster 
on the return day of the habeas corpus, this is no escape (s). 

So, a sheriff is allowed a reasonable time to bring and keep 
a prisoner beyond the limits of his county, in obedience to the 

(m) Piggott V. Wilkes, 3 Bar. & & G. 558, S. C. ; Botten v. Tomlin- 

Ald. 502. son, 16 Law J. (C. P.) 138 ; Seale 

(ji) Villa de Darby v. Foxley, 1 v. Hudson, 11 Jurist, 610. 

Roll. Rep. 119; see also Jackson v. (p) See Roll. Abr. Escape (D)9; 

Hill, 10 A. & E. 493, Patteson, J. Cro. Car. 14, 466; Hard. 476; 1 

(o) See ante, 40, 41 ; Pascoe v. Mod. 116. See 1 Sid. 13; Bull, N. 

Vyvyan, 1 Dowl. N. S. 939. See also P. 67, as to habeas corpus ad testifi- 

Alderson v. Davenport, 13 M. & W. candiim. 

42, ctnle, 40, that merely requesting (q) Hard. 476 ; Roll. Abr. Escape 

the under-sheriff to forward the warrant (D) 9 ; 1 Lord Raym. 241 ; 1 IVIod. 

to a particular officer of the sheriff, 116. 

and instructing that officer by letter as (r) Holdroid v.Liddell.l Ld.Raym. 

to where the defendant is likely to be 241. 

found, does not constitute such officer (s) Boyton's case, 3 Rep. 44 ; 

a special bailiff. See also Brown v. Moore, 257. 
Copley, 8 Scott, N. R. 332; 7 Man. 



204 



CAl'lAS AD SATISFACIKNDUM. 



CHAP. VH. 
SECT. II. 



Discharging 
a defendant 
by order of a 
court without 
jurisdiction 
is an escape. 



Escape by 
act of God, 
or by I he 
king's ene- 
mies. 



warrant of a commissioner of bankrupts for examination before 
him ; and it is sufficient if during such time tlic prisoner be ac- 
companied and carefully watched by the otllcer, and it is no escape 
that he is allowed to go about with the officer to different places, 
and to dine and sleep at an inn(<). 

In all the cases where the sheriff is ordered to discharge 
a prisoner in his custody in execution, the sheriff is bound to 
see that the court has jurisdiction to make such order, for he 
is liable to an action for an escape if the court should not have 
jurisdiction; as where a gaoler, by the command of the lord 
chancellor and treasurer, allowed a prisoner in his custody in 
execution to go at large to collect money to pay the king, this 
was holden to be an escape, for the lord chancellor and trea- 
surer had no authority to grant such a license (u). So where, 
by an act of parliament for the relief of insolvent debtors, the 
justices in sessions were enabled to discharge certain prisoners, 
and made an order on the gaoler to discharge a person that did 
not come within the description of the act, whom he allowed to 
go at large, the sheriff was held to be liable for an escape (f ). 
But the sheriff would be justified in obeying an order of the 
Insolvent Court for the discharge of a prisoner, without inquir- 
ing into all the circumstances to see if the defendant was entitled 
to such order, provided that the order itself was good upon the 
face of it (a;). 

The sheriff is, however, excused if the escape be occasioned 
by the act of God, or by the queens enemies. Thus, it is laid 
down, that if prisoners escape from prison by sudden jire, no action 
lies against the sheriff", for this is the act of God {y). It has been 
supposed that the sheriff is only excused where the prison is 
burned hy fire by lightning {z). And it has been decided that the 
decay of the prison for want of repair is not an excuse for an 



(<) Nias V. Davis, 2 Carr. & K. 
280. 

(«) Roll, Abr. Escape (D) 8 ; 
Dyer, 162,297; Cromp. Courts, 106; 
Dalt. Sheriff, 142; Colston r. Ross, 
Cro. Eliz. 893. Nor even can a gaoler 
allow his prisoners to go at large when 
the plague is raging in the prison. 
See also tloll. Abr. Escape (D) 10; 
Cro. Car. 466. 

(i;) Brown v, Corapton, 8 T. R. 



424 ; Anon., Salk, 273, The case of 
Orby V. Hales, 1 Ld. Haym. 3 ; 4 Mod. 
353, S, C, contra, is not law. 

(.T) 1 & 2 Vict, c. 110, s. 110; 
Saffery i;, .Tones, 2 B. & Adol. 698 ; 
see also Marsh v. Wooliey, 1 Dowl. 
& L,84. 

(v) Roll. Abr. Escape (D) 6; 
Dyer, 66. 

(z) Per Eyie, C. J., 2 H. Blac. 
113. See also 1 T. R. 27. 



ESCAPE. 



205 



escape («). So if sx\y forc'ign enemies of tlie king break open the chap. vn. 
prison and release the prisoners, the sheriff and gaoler are ex- sect, ii. 
ciised ; but if traitors and rebels (h), or if a large and irresistible 
niob(c), break open a prison and set the prisoners at large, the 
sheriff is liable to an action for an escape. 

So also, the sheriff will be excused if the escape be occasioned Escape by 

' ^ ^ the coiilriv- 

bv the fraud and covin of the plaintiff, or the party really in- anre of piahi- 
terested in the judgment (d). Thus where the party enticed the 
defendant out of the rules, it was held that the marshal, in whose 
custody he was, could not be charged with his escape (c). So 
where a prisoner, being in custody in execution at the suit of the 
plaintiff, and having escaped beyond the rules, was, by the con- 
trivance and with the privity of the plaintiff, arrested on a writ 
of mesne process at the suit of a third person, and detained out 
of the rules, in order to prevent him from returning into cus- 
tody, as he otherwise would have done, and in order to deprive the 
marshal of the defence which such return would have afforded 
him, it was held that he could not sue the marshal for an escape 
occasioned by the detainer which he had so contrived (/). 

Escapes are of two kinds, either voluntary or negligent. In between^vo- 
the case of a voluntary escape, the sheriff can never afterwards '„''g"J,'g^„Yes- 
retake the defendant, but is liable to an action of false imprison- capes: iiertin 

' ■•■ of recapiioii. 

ment if he do (^) ; even although such voluntary escape were 
occasioned through a mere mistake. Thus, where a person, being 
in custody at the suit of A., a ca. sa. was afterwards, and whilst 
he was so in custody, lodged against him at the suit of B., and the 

(a) Alsept V. Eyles, 2 H. Blac. also ])er Lord Denman, C. J., in 

108. Coutant v. Chapman, 2 Q. B. 788. 

(fc) Roll. Abr. Escape (D) 7, re- By the stat. 8 & 9 Will. 3, c. 27. 

feiring to 3 E. 6, 66, 15; Soulhcot's s. 4, it is enacted, " that if any 

case, 4 Rep. 84; Dyer, 66 b. marshal or warden, or their respective 

(c) O'Neil V. Marson, 5 Burr. deputy or deputies, or any keeper of 

2812; Elliott v. Duke of Norfolk, any other prison within this kingdom, 

4 T. R. 789; Roll. Abr. Escape (D) shall take any sum of money, reward, 

3. or gratuity whatsoever, or security for 

{d) Hiscocks v. Jones, IMoo. & the same, to procure, assist, connive 

Mai. 269; Merry «. Chapman, 10 Ad. at, or permit any such escape, and 

& Ell. 516. shall be thereof lawfully convicted, 

(e) Hiscocks II. Jones, si(;;ra. the said marshal or warden, or their 

(/) Merry v. Chapman, 10 A. i?c respective deputy or deputies, or such 

E, 516, olher keeper of any prisons as afore- 

{g) Featherstonehaugh ;;. Atkinson, said, shall for every such offence for- 

Barnes, 373; Atkinson v. .lameson, feit the sum of 500/. and his said 
5T. R. 25; 1 Show. 174; 1 Sid. 330; office, and be for ever after incapable of 
Whiting V. Reynell, Cro. Jac. 657; executing any such office." 



g06 CAPIAS AD SATISFACIENDUM. 

CHAP. VII. writ at the suit of A. having been withdrawn, the defendant was 
^^^'^' "• discharged out of prison, without any notice being taken of B.'s 
writ (that writ having by mistake been omitted to be entered in 
a book in which detainers were generally entered), it was held 
that the escape was clearly voluntary, and, being so, the sheriff 
could not retake the defendant on B.'s writ (A). If, however, the 
escape be without the consent of the plaintiff, the plaintiff may 
retake him on a fresh ca. sa. (i) ; but where, after a volun- 
tary escape, the plaintiff recovered against the sheriff for an es- 
cape, it was held that a fresh ca. sa. could not be sued out in 
the plaintiff's name, with a view to the indemnification of the 
sheriff (^), and it seems that for executing such a writ the sheriff 
would be liable to an action at the suit of the defendant (Z) ; but 
if the defendant, after a voluntary escape, return to prison, the 
plaintiff may treat him as in execution (m) ; but it seems he 
would thereby waive his action for the escape (w). After a neg- 
ligent escape, the sheriff may on fresh pursuit retake the de- 
fendant ; and if on such fresh pursuit he be retaken (o), or vo- 
luntarily (^) return into the sheriff's custody before action 
brought, it is a good defence if pleaded to the action for the 
escape ; but if before the defendant has been retaken the plain- 
tiff has commenced his action against the sheriff, the sheriff is 
still liable (q). So also the sheriff would be liable, if at any time 
between the escape and the return to custody he knew where to 
find the defendant, but omitted to retake him, or to take any 

(h) Filewood V. Clement, 6 Dowl. 109; James v. Peiice, 1 Vent. 269; 

508. S. C. 2Lev. 132; 3 Keb. 453, 463; 

(i) See 8 & 9 Will. 3, c. 27, s. 7. see also ib. 487 ; Dyer, 275; Hob. 

And see 1 Sid. 330 ; 1 Vent. 4, 69; 202, contra, denied to be law. 

1 Lev. 211 ; 2 Mod. 136: Cto. Car, (?;) See cases in last note: Roll. Abr. 

255; 2 Sir T. Jones, 21 ;' Cro. Eliz. Execution (U) 8; 1 Ld. Raym.399; 

555. But if the plaintiff consent to 1 Salk. 271; Stra. 423; Grant v. 

the discharge of the defendant, he Southern, 6 Mod. 183. But see Ra- 

cannot retake him on a fresh ca. sa,, venscroft i;. Eyles, 2 Wils. 294. 

for it is considered satisfaction, 2 (o) Ridgway's case, 3 Rep. 52 b; 

East, 243; 1 Bos. & Pul. 242; 6 Moore, 660, S.C. ; Harvey?;. Rennell, 

T. R. 525; 1 T. R. 557; 4 Burr. Sir W. Jones, 145; Roll. Abr. Escape 

2482; nor sue out a ^'. /a. ; nor can (E), 1, 3. 

he set off the judgment in another ac- (/)) Chambers v. Gambler, Com. 

lion whilst the defendant is in custody 544 ; Bonafous v. Walker, 2 T. R. 

in execution, Taylor v. Waters, 5 M. 129. See also 2 Blac. 1050 ; 11 East, 

&Sel. 103. 406; 1 Bos. & Pul. 413. 

(k) Gilbert v. Aston, 2 Dowl. (</) Roll. Abr. Escape (E), 2,4; 

N. S. 413. Whiting v. Rennell, Cro. Jac. 657 ; 

(Z) Ibid. 3 Rep. 52 ; Stonehouse ;;. MuUins, 

(w) Lenthall v. Lenthall, 2 Lev. Stra. 873. 



ESCAPE. 



307 



steps towards his recapture (r). We have, however, already chap. vh. 
seen (s) that tlie sheriff will not be liable for a negligent escape _^^^£J^ 
occasioned by the fraud of the plaintiff. The sheriff may retake 
a prisoner vvho has escaped out of his custody without his privity 
in any county {t), on fresh pursuit ; and to do so he may break 
open an outer door («), and he may retake the defendant on a 
Sunday (x). Fresh pursuit means pursuit made as soon as the 
sheriff has notice of the escape (?/). It was held that the marshal 
of the King's Bench might retake a prisoner who had escaped 
from his custody, notwithstanding the prisoner had obtained his 
protection from the commissioners of bankrupt after the escape 
but before the recaption, inasmuch as such protection only ap- 
plies to an original taking (:3). And it appears to be law that 
the sheriff, although fresh pursuit have not been made, and al- 
though the plaintiff have brought an action against the sheriff, 
may retake the defendant until he is satisfied by the defendant 
for the escape (a), if the plaintiff have recovered against the 
sheriff for a negligent escape. 

The sheriff, after a retaking; of the defendant, may detain him The sheriff's 

' o ' ^ remedy tor 

until he is satisfied for the damage sustained by reason of the ihe escape. 
escape (6) ; or he may bring an action against the defendant to 
recover damages for the costs sustained by him. 

The only action which lies against the sheriff for an escape of or the action 

1 • r- 1 r o r> \T- no '°'' ^" escape 

a debtor m execution, snice the passmg ot the 5 oc b Vict. c. vb of a prisoner 
(10th August, 1842), is an action upon the case for such damage '" ^''^'^" '""* 
as the plaintiff at whose suit he was imprisoned may have sus- 
tained by reason of such escape (t). The action on the case was 
the only action which lay against the sheriff at common law for 
an escape, in which action the plaintiff is only entitled to such 
damages as the jury will give ((/) ; but by several statutes (stat. 
of Westminster 2nd, 13 Edw. 1, c. 11 ; 1 Rich. 2, c. 12; 1 
Ann. Stat. 2, c. 6, s. 2), an action of debt was also given, in 

(r) Davis V. Chapman, 5 Bing. N. also tit. Execution (U) 5. 

C. 453. (z) Anderson v. Hampton, 1 Bar. 

(s) Ante, 201. & Aid. 309. 

(0 Dalt. Sheriff, 139. And see (a) Dalt. Sheriff, 139; Ridgway's 

Roil. Abr. Execution (U) 9; Ridg. case, 3 Rep. 52. 

way's case, 3 Rep. 52. (h) Id. ibid. 

(u) See ante, 128; 5 Rep. 93. (c) 5 & 6 Vict. c. 98, s. 31. 

(.i) Sir \V. Moore's case, 2 Lord (d) Bonafous v. Walker, 2 T. R. 

Ravm. 1028 ; see also Atkinson v. 132. See also Gabel v. Perchard, 

Jameson, 5 T. R. 25. See ante, 80. 2 Anst. 522. 

(y) Roll. Abr. Escape (E) 3. See 



208 CAPIAS AD SATISFACIENDUM. 



CHAP. VII. 
SKCT. 11. 



maintiiiii nn 

action 

escape 



wliich action the plaintiff miglit recover tlie whole debt for which 
the defendant was in execution (e). This action of debt is now, 
however, expressly taken away by the 31st section of .5 & G 
Vict. c. 98, which enacts, " that if any debtor in execution shall 
escape out of legal custody, the sheriff, bailiff, or other person 
having the custody of such debtor, shall be liable to an action 
upon the case for damages sustained by the person or persons at 
whose suit such debtor was taken or imprisoned, and shall not 
be liable to any action of debt in consequence of such escape." 
Who may If, whilst the defendant be in custody of the sheriff in an 

maintain an . , • p « • t i i i • i (v» n i 

action for an actiou at the suit ot A., a wnt be lodged in the ofrice of the 
sheriff at the suit of B., and the defendant escape, B. as well as 
A. may have an action against the sheriff for the escape, for 
the delivery of the writ is an arrest in law(/). An action 
will lie by an executor for an escape out of execution in the 
time of his testator (g). Where a judgment was obtained by 
the plaintiff as administratrix, it was held that she might bring 
an action for the escape without suing as administratrix (/«). 
Where the plaintiff is nonsuited in an action against a hundred, 
who take him in execution for the costs of the nonsuit, and the 
sheriff allows him to escape, the hundred may sue the sheriff for 
an escape (i). Where a defendant in execution in an action of 
trespass for mesne profits, brought in the name of the nominal 
plaintiff, escape, an action for the escape may be brought in the 
name of the nominal plaintiff (/l). The action may be brought 
by the plaintiff", for an escape on a capias utlagatum, in his own 
right ; for it was reported by the prothonotaries that the pre- 
cedents were in that way as well as qui tarn (J). 

Neither the heir nor the executor of the sheriff is liable for 
an escape, because it is a personal tort, which dies with the 
person of the sheriff (?«). But where there are two sheriffs who 

(0 Hawkins v. Plomer, 2 Blac. (h) Bonafous v. Walker, 2 T. R. 

Rep. 1048; Alsept v. Eyies, 2 H. 126. 

Blac. 113. See also 2 T. R. 129. (0 Fitzg. 296. 

(/) Benlon v. Sutton, 1 Bos. & (/c) Doe y. Jones, 2 M. & Sel. 473. 

Pul. 24; Jackson v. Humphreys, Salk. (l) Moore v. Reynolds, Cro. Jac. 

273; Frost's case, 5 Rep. 89; see 619, recog. in Throgmorlon v. 

also ante, 130, and Fiievvood v. Cle- Church, Dom. Proc, 1 P. Williams, 

ment, 6 Dowl. 508. 693. 

(g) Per Holt, C. J., in Berwick v. (m) Dyer, 271, 322 a; Dalt. Sher. 

Andrews, Lord Raym. 973; S. C. 6 517; see also 6 Mod. 125; 1 Lord 

i\lod. 125; Dyer,"322a, note; W. Raym. 399. 
.Tones, 173; 1 Vent. 31. 



ESCAPE. 209 

suffer an escape, and one tlies, the action lies against the sux*- chap. \u. 

vivor, or if pending the action one dies, the action survives (?i). '- — — 

The old sheriff, at the expiration of his office, should regularly 
turn over all the prisoners to the new sheriff, in the manner 
hereinbefore pointed out (o) ; and if he omit any, it is an es- 
cape (^;). If the sheriff died, the new sheriff was (before 3 Geo. 
1, c. 15,) bound to take notice of all the prisoners, and the ac- 
tions with which they were charged (q). And where a prisoner 
had escaped from prison by the assent of the gaoler, and re- 
turned to prison, and afterwards a new sheriff was appointed, 
during whose shrievalty the defendant again escaped, the new 
sheriff was held to be liable to an action for this escape; for it 
was optional for the defendant to proceed against the old she- 
riff, or hold the defendant in execution (r). Between the death 
of the old sheriff and the appointment of his successor, formerly 
there was no officer that was responsible for the safe custody of 
prisoners ; but by the statute 3 Geo. 1, c. 15, s. 8, " in case of 
the death of the high sheriff, the under-sheriff shall execute 
his office until another sheriff be appointed, and shall be an- 
swerable for the execution of the office in all things during that 
interval as the high sheriff would have been if living (s)," 

The venue in this action is transitory (/). In a declaration for Declaration, 
an escape of a prisoner in execution, it is necessary to state that 
the plaintiff recovered a judgment against the debtor,, — that the 
ca. sa. was issued and delivered to the defendant, — the arrest 
under it, — and that the debtor afterwards escaped ; as, however, 
the judgment is only inducement to the action, the allegation 
"quod cum recuperasset" is sufficient («<). If it be alleged that 
the plaintiff recovered a judgment in a particular term, as it 
appears by record, and on the evidence it appears that the 
judgment is of a different term from that stated in the declara- 
tion, the variance is not material ; for the term is not material, 

(n) Bennion r. Watson, Cro. Eliz. Dyer, 275 ; Roll. Abr. Execution (U) 

625; see also stat. 8 & 9 Will, 3, c, 8 ; Langdon i;. Wallis, 1 Ld. Raym. 

11, s. 7. 399; 1 Salk. 271. 

(o) Ante, 22. (s) Auie,24. 

(p) Westby's case, 3 Rep. 71b. (t) 1 Wils.336; PIowd.35; Dyer, 

((/) Ibid. ; Cio. Eliz. 366. 278 b ; Bac. Abr. Escape (F). 

(r) Lenlhall v. Lenthall, 2 Lev. (k) Eden j;. Lloyd, Cro. Eiiz. 877 ; 

109; James v. Peaise, 1 Vent. 269 ; Waites v. Briggs, 2 Salk. 565; 1 

2 Lev. 132, S. C; 3 Keb. 453, 463; Saund. 38 b, note q4). 

P 



210 CAPIAS AD SATISFACIENDUM. 

CHAP. vir. and tlie '^nout jmte/ per recordum may be rejected as sur- 
'^^^'^' "• plusage(r). And where the declaration in an action for an 
escape stated a judgment, and also an award of execution 
against the prisoner for the damages recovered, and that thereupon 
the prisoner was committed, &c., it was held that the allegation 
that a SCI. fa. had been sued out was immaterial, and that it 
need not be proved, proof of the judgment being sufficient (?/). 
But the judgment must correspond substantially with the decla- 
ration; for where, in an action for a false return to a ji. fa., the 
declaration stated that the plaintiffs, i?/ the judgment of the court, 
recovered against the bail, and the evidence adduced was the sci. 
fa. roll, which concluded in the common form, that the plahitiffs 
shoidd have execution against the bail, the variance was held to 
be fatal (z). And where, in a declaration in an action for an 
escape, it was stated the bail was put in before di judge in cham- 
bers, prout patet per recordum, who had rendered the defendant, 
and on the entry of the bail being produced, it appeared to have 
been taken before the court at Westminster, this was held to be a 
fatal variance (a). 

A negligent escape may be given in evidence under a count 
for a voluntary escape (i). Before the passing of the 5 & G 
Vict. c. 22, if a prisoner was brought up by habeas corpus, and 
committed to the custody of the marshal of the Queen's Bench, 
or the warden of the Fleet, in an action against the marshal or 
warden for an escape, it must have been alleged in the declara- 
tion that the commitment was of record ; for the prisoner was 
not in point of law in the marshal's custody until the commit- 
ment was entered of record (c) ; and the law would seem to be 
the same since the passing of the 5 Sc 6 Vict. c. 22, in the case 

(i) Sloddart v. Palmer, 4 Dowl. As to the power of amendment, see 

& lly. 624 ; 3 Bar. & Cress. 2, S. C. ; now stat. 3 & 4 Will. 4, c. 42. s. 23. 

I'uicell V. Macnamara, 9 East, 157; (h) Bonafous i'. Walker, 2 T. II. 

Phillips V, Shaw, 4 Bar. & Aid. 435 ; 131 ; Sir Ralph Bovey's case, 1 Vent. 

5 Bar. & Aid. 964; Bennetli'. Isaac, 211,217; 1 Saund 35, n. 1 , 

10 Piice, 154; see also Cocks v. (c) Wightman t). IMullins, 2 Stra. 
Brewer, 2 f)o«l. N. S. 759 ; Lewis v. 



1226; Barnes v. Eyles, 2 Moore, 
561; 8 Taunt. 512, S. C; see also 
Turners. Eyles, 3 Bos, & Pul. 456; 



Alcock, 6 Dowl. 78. 

(y) Bromfield v. Jones, 6 Dowl. & _ _. .. — _,-.^, — . -.. , 

By.' 500; 4 Bar. & Cress. 380, S. C. \Vigley v. Jones, 5 East, 440; Reg. 

(s) Phillipson V. Mangles, 11 East, Gen. 41 Geo. 3, K. B., 1 East, 410 ; 

516. Puidonn). Brot'kridge, 3 Dovvl.& Ry. 

(a) Bevan i'. Jones, 6 Dowl. & 597; 2 J5. & C. 342, S. C. 
Ry. 483; 4 Bar. c\ Cress. 403, S. C. 



ESCAPE. 211 

of persons committed to tlie custody of the keeper of the Queen's chap. vn. 
. siiCT.ir. 
prison. ■ — 

A count for neglecting to arrest the debtor may be joined 
with a count for an escape in the same declaration (d) ; and in an 
action against a sheriff for not arresting the defendant, it is not 
necessary to aver in the declaration that the sheriff had notice 
of the defendant being in his bailiwick (e). 

In an action for an escape, the plaintiff may be ordered to Pyiticuhis of 

. . . ■, escape. 

give a particular of the alleged escape, specifying the time and 
place (/). 

In an action on the case for an escape, the plea of not guilty (ex- P'eas. 
cept in cases otherwise provided for by particular statutes) ope- 
rates as a denial of the neglect or default of the sheriff or his offi- 
cers, but not of the debt, judgment, or preliminary proceedings(g') ; 
if the defendant wishes to dispute the existence or validity of 
the debt, judgment, or any other proceedings, or the fact of the 
arrest having been made by himself or his officers, he must 
plead specially ; so must he also, if, admitting the fact of the 
escape, he wishes to set up any matter of excuse, as, for instance, 
a recaption before action, in the case of a negligent escape. 

We have seen (/«) that under a count for a voluntary escape 
the plaintiff may give evidence of a negligent escape. To a 
count for a voluntary escape, therefore, the defendant need not 
traverse that the escape was voluntary, but may plead that it 
was negligent (i), and that the defendant was retaken on fresh 
pursuit, or that he voluntarily returned into custody before the 
commencement of the action ; and if the plaintiff relies on a 
voluntary escape, he may show it in his replication (j), It was, 
even before the new rules of H. T. 4 W. 4, necessary that the 
defence of recaption or voluntary return into custody should 
be specially pleaded (A-) ; such a plea, however, must be verified 
by affidavit, for by the statute of 8 & 9 Will. 3, c. 27, s. G, 
" no retaking on fresh pursuit shall be given in evidence, on 

(d) Raymond v. Bridges, Lofft,59. (0 See Davis y. Chapman, 5 Bing. 

(e) Dean, &:c, of Hereford, v. Mac- N. C. 453. 

namara, 5 Dowl. & Ry. 95; Dui<e i>. (j) Sir Ralph Bovey's case, 1 

Duke, 4 Bing. N. C. 197. Vent. 21 1, 217; S. C. 3 Keb. 55; 1 

(/) Webster v. Jones, 7 D. & R. Saund. 35, n, (1). See also 2 T. R. 

774; Davis v. Chapman, 6 A. & E. 131; sed vide Whiting v. Reynell, 

767. Cro. Jac. 657. 

(g) Reg. Gen. H. T. W. 4, r. 4. (k) See 8 & 9 Will. 3, c. 27, s. 6 ; 

(/t) Supra, Bonafous v. Walker, 2 T. R. 131. 

p3 



212 CAPIAS AD SATISFACIKNDUIVI. 

CHAP. VII. tlie trial of any issue in any action of escape, unless the same 
jECT^ be specially pleaded ; nor shall any special plea be taken, re- 
ceived, or allowed, unless an oath be first made by the marshal 
or keeper of the prison, and filed in the office of the respective 
courts, that the prisoner escaped without his knowledge." It is 
necessary, as well in a plea of recaption as of voluntary return 
of the defendant to custody, to allege that such recaption or re- 
turn was before action brought (/), and also that the defendant 
was detained in prison from the time of such recaption or return 
to the commencement of the action against the sheriflr(r«), or 
until the defendant's legal discharge(M); and also that the de- 
fendant did not know where the prisoner was during any period 
of his absence (o). 

In a plea of recaption, or of voluntary return into custody, it is 
suflncient to show a detention of the prisoner from the time of such 
recaption or return, np to the time of action brought; and therefore 
where a plea of a voluntary return alleged that after such return 
the defendant did therefore keep and detain, and always from 
thence hitherto hath kept and detained, and still doth keep and detain, 
the prisoner in the custody. Sec, to which the plaintiff replied 
de injuria; it was held that the plea was supported by proof of 
a detention up to the time of the commencement of the suit, and 
that the allegation that the defendant thence hitherto kept and still 
doth keep, Sec, was superfluous and immaterial, and was not 
put in issue by the replication de injuria, because that replication 
only puts in issue the material allegations of the plea (p). If the 
judgment upon which the ca. sa. was issued is absolutely void be- 
tween the parties, it seems that that circumstance would afford a 
good defence to an action for an escape. It would, of course, be 
necessary to plead that defence specially, and the plea should set 
forth all the circumstances to show why and how the judgment was 
void(y). If the defence be that the prisoner was discharged by the 
plaintifif, or by the order of a court having jurisdiction to make such 
order, such discharge should be specially pleaded. A plea that 

(/) Slonehouse i-. Mullins, Stia. 199. 
S73. (o) Davis v. Chapman, 5 Bing. 

(m) Cliambers v. Jones, 11 East, N, C. 453) see also S. C. 2 Man. & 

40() ; Aleriton v. Briggs, 1 Ld. Baym. G. 921. 

39; explained in 11 East, 410; see {]>) Davis i). Chapman, 2 Man. & 

also Giiffilhs V. Eyles, 1 Bos. & Pul. G. 921. 
413. ('/) See Lane v. Chapman, 11 A. 

(?i) \Villis V. Gambier, Prac. Reg. & E. 966. 



ESCAPE. 213 

tlie attorney for the plaintiiT authorized tlie discharge would be chap. vh. 
bad, unless it contained an averment, either that the amount lor . ^^*'^' "' 
which the execution issued had been paid, or that the discharge 
was authorized by the plaintiff (r). The defence that the 
prisoner was discharged by the order of the Insolvent Court, 
may be given in evidence under the general issue (s), or it may 
be specially pleaded ; and in such special plea it will be suffi- 
cient to set out the order of the court, and it need not be shown 
that all the proceedings upon which the order was grounded 
were properly taken (i). 

We have seen(«) that the sheriff may defend himself by 
showing that the arrest was made by, and the escape from, a 
special bailiff appointed by the plaintift^ himself ; and this 
defence appears to have been pleaded specially in one case (y) 
without objection ; but, on special demurrer, it may be doubted 
whether such a plea would not be held to amount to an argu- 
mentative traverse of the arrest by the defendant. We have also 
seen {w) that the sheriff may defend himself by showing that the 
escape was occasioned through the fraud and covin of the plain- 
tiff himself; but to an action for a negligent escape, a plea that 
the plaintiff or others by his contrivance fraudulently detained 
the debtor out of his custody, while he was intending and about 
to return, should allege not only that the debtor could, but also 
that he would, but for such fraudulent detainer, have returned into 
custodij before the commencement of the action\^x). To a declara- 
tion against the bailiff of a liberty for an escape after an arrest 
under a mandate, it would be no defence against the further 
maintenance of the action to plead, by way of estoppel, that, 
after the commencement of tlie suit, the sheriff' returned cepi 
corpus (y). 

To any plea setting up matter of excuse for the wrongful act iupiicrtiiun;-. 
complained of, the plaintiff may reply de injuria; and this re- 
plication will put in issue nil the material allegations in the plea, 

((■) Savovy V. Chapman, 11 A. & (n) Ante, 199. 

E. 829. (v) Tascoe v. Vyvyan, 1 Dowl. N. 

(s) 1 & 2 Vict. c. 110, s. 110. If S. 939. 

tlie general issue by statnte be relicil (w) yhite,'20\. 

on, tlie words " By Statute" must be (x) Merry v. Chapman, 10 A. & 

inserted in the margin of the pica ; E. 516. 

Reg. Gen. T. T. 1 Vict. d^) Jackson v. Hill, 10 A. & E* 

(0 Saflery v. Jones, 2 B. & Adol. 477". 
598. 



214 CAPIAS AD SATISFACIENDUM. 

ciiAi'. VII. but not such as are superfluous or immaterial (z). To a plea 
^^' "' setting up as a defence a recaption or a voluntary return, tlie 
plaintifl" may reply, by way of new assignment, that, after such 
recaption or return to custody, the prisoner again escaped, 
which escape is the one complained of in the declaration (a). 
This replication by way of new assignment, however, is not 
necessary, for under a replication traversing that the debtor was 
detained in custody up to the time of the commencement of 
the suit, the same evidence may be given (6). 
Evifience in The plea of not guilty puts in issue only the neglect or default 
an escape. of the sheriff or his officers (c) ; and the plaintiff need not, unless 
they are expressly denied, prove either the judgment, the is- 
suing or delivery of the writ to the sheriff, or the arrest. 
Under not Where the plea of not guilty, therefore, is pleaded alone, the 

^"""^' plaintiff need only prove the neglect or default of the sheriff, 

which is the escape, and the damages sustained in consequence. 
In order to show the escape, the plaintiff must prove that the 
debtor was at large after the arrest, either before or after the 
return of the writ, for the shortest time ; even if he be accom- 
panied by a sheriff's officer, it is an escape ((/). And by the 
statute 8 & 9 Will. 3, c. 27, s. 8, " If any marshal or warden, or 
their deputies, or the keeper of any prison, after one day's notice 
in writing, given for that purpose, shall refuse to show a prisoner 
committed in execution to the creditor at whose suit such 
prisoner was committed, or his attorney, such refusal shall be 
adjudged to be an escape." As to the admissions of the under- 
sheriff, or the bailiff who made the arrest, and as to the manner 
of connecting the sheriff with the officer, the observations already 
made on the evidence in an action for an escape on mesne pro- 
cess (e) apply equally to an action for an escape of a prisoner 
in execution. If the old sheriff do not assign over all the pri- 
soners to the new sheriff, this is an escape; but if it be shown 
that there was an assignment by parol, to which the new sheriff 
assented, the sheriff is not liable for an escape (_/). 
Denial of the The judgment on which the ca. sa. issued may be proved by 
jucgmen. giving in evidence an examined copy of the record. What is 

(s) Davis V, Chapman, 2 Man. & (d) And as to what is an escape, 

G . 92 1 . see ante, 200, et seq. 

(a) See 1 Bos. & P. 414. (e) Ante, 188. 

(I>) See 1 Bos. & P. 417. (/') Poulter '.'.Greenwood, Barnes, 

(c) Reg. Gen. H. T. 4 Will. 4. 367, 4to. 



ESCAPE. 



.'215 



and what is not a fatal variance in the statement of tlie judgment chap. vu. 

has ah-eady been considered (^). It is competent for the de- _!^^^l!j !_ 

fendant to show that the judgment is vvliolly void, as tliat there 
was a want of jurisdiction in the court wherein it was given (/«), 
but lie cannot show that the judgment is erroneous (?). 

The issuing and delivery of the writ to the sheriff may be Denial oi the 
proved as follows : if the sheriff has returned the writ, an ex- Ifeiive%''of 
amined copy thereof, and of the sheriff's return indorsed on it, 
will be conclusive evidence against the sheriff(j) ; if the sheriff 
has not made his return, notice to produce the writ having been 
duly served on the sheriff's attorney, and search Jiaving been 
made at the Treasury (/c), parol evidence of its contents may be 
given ; and proof should also be given of its delivery to the 
sheriff, A delivery to the sheriff's deputy in London is a de- 
livery to the sheriff (0. Where the old and new sheriff return 
a writ non est inventus, in an action against the old sheriff for 
not arresting the defendant, it was was held that as the return 
related to the day of quitting office, that, to make the sheriff 
liable for the default of the officer employed, it is not enough to 
show that the officer's name is on the writ, but it is necessary 
to prove that the neglect of the officer was committed whilst the 
defendant was in office {pi). 

The arrest may be proved in the same manner as an arrest Denial ot iiic 
on mesne process (n). The arrest proved must be a legal one(o). 
By the statute 8 & 9 Will. 3, c. 27, s. 9, it is enacted, " that if 
any person, desiring to charge another with any action or exe- 
cution, shall desire to be informed by the marshal of the King's 
Bench, or the v/arden of the Common Pleas, or their respective 
deputy, or by any other keeper or keepers of any other prison, 
whether such person be a prisoner in his custody or not, every 
the said marshal, warden, or such keeper, &c., shall give a true 
note in writing thereof to the person requesting the same, or his 
attorney, upon demand at his office for that purpose ; and if such 
marshal, warden, deputy, or keeper shall give a note in writing 
that such person is an actual prisoner in his custody, every such 

(g) See aH(e, 206. (0 Woodland i;. Fuller, 11 A. & 

{h) Seea/ire, 199. E. 859. 

(i) Ibid. (m) Fonsec v. Magnay, 6 Taunt. 

(j) 2 Phill. Evid. 231, 1st edit. ; 231 ; 1 Marsh. 554, S. C. 

Starkie's Evid. part 4, 1346; Bui. {n) See aji(e, 184. 

N. P. QQ. (o) Coulant v. Chapman, 2 Q. B. 

(k) Rose. N. P.,Ev. 610, last edit. 771. 



216 CAPIAS AD SATISFACIENDUM. 

CBAP. VII. note shall be taken as sufficient evidence of the fact (2>)." Where 
^^^^- "• the writ has been returned, the slieriff" is bound by his return 
both as to the foct and the tin)e of the arrest (ry); but if the 
writ has not been returned, then some evidence should be given 
to connect the bailiff' and the sheriff'(>). 
Evidence for Under the plea of nil debet, the defendant was entitled to j^o 
tiiedeiendant. .^^^^ evidence of any thing which was an excuse for him, excepting 
recaption on fresh pursuit, or the voluntary return of the de- 
fendant to custody (i). On the issue, that the sheriff did not 
detain the creditor after the recaption, or the voluntary return, 
viodo et forma, if it appear in evidence that the defendant was at 
large after the return, and died out of custody, the plaintiff" is 
entitled to a verdict (/). Indeed, it seems to have been the 
opinion of Eyre, C. J.(?0. that on a replication that the defend- 
ant had not kept the prisoner in custody from the time of the 
return, proof of an escape after the first return would have en- 
titled the plaintiff to a verdict. 
Damage?. In an action on the case for an escape, the sheriff will be 

liable to the amount of such damages as a jury may consider 
that the plaintiff at whose suit he was imprisoned may have 
sustained by reason of the escape {x) ; and even when debt was 
allowed for an escape, Lord Abinger seemed to think that the 
sheriff" stood in the same situation as the defendant in the 
action, and might show the real merits of the case, and to what 
extent the defendant was liable (?/). If the escape was ro/iiH- 
tary, the sheriff has no mode of reimbursing himself, for a bond 
taken by the sheriff to suffer a prisoner in his custody to go at 
large is void (2); nor can tlie sheriff maintain an action against 
the defendant to recover the money he was obliged to pay in 

(/;) In practice, when a prisoner (7) Cook v. Hound, 1 iM. & Rob. 

in custody of the marshal is to be 512. 

charged with a King's Iknch execu- (r) Rose. N. P. F.v. 611. 

tion, a rule is obtained from the mar- («) See ante, 208. 

shal to acklowledge the defendant {t) Chambers v. Jones, 11 East, 

to be in custody, Sucli an acknow- 40G. 

ledgmenl is of course evidence to prove (u) Griffiths v. Eyles, 1 Bos. & 

the fact. When a prisoner is in cus- Pul. 413. Per Lord Ellenborough, 

tody of the warden of the Fleet, and C. J., 11 East, 409. 
is charged with a Common Pleas or (,i) 5& 6 Vict. c. 98, s. 31. See 

Exchequer writ, a habeas corpus is ob- also 13onafous v. Walker, 2 T. R. 126. 
tained, the return to which proves the (y) Evans v. Manero, 9 Uowl. 265. 

fact of his being in custody : Stark. (2) See 1 Sid. 132 ; and see ante. 

on Evid. part. 4, 1347. 



ESCAPE. 217 

consequence oi voluntarily permitting him to escape («). If tlie chap. vn. 
escape be negUgeiit, the sheriff' may maintain an action against stcT\^i^ 
the defendant for escaping, although the sheriff' has not been 
sued for the escape (h) ; or, as we have seen, the sheriff' may 
retake the defendant after a negh'gent escape, which will be a 
good defence to an action commenced after such recaption (c) ; 
or, if the defendant be retaken when an action has already been 
brought against the sheriff) he may be detained until he satisfy 
the sheriff' the damages sustained by reason of the escape ((Z)- 

The court will not stay proceedings in an action commenced Siajing pro- 
against a sheriff', on payment of costs, where the defendant was 
privileged from arrest : thus, where the defendant was arrested 
on a ca. sa., and the defendant, on producing his certificate 
under a commission of bankruptcy, was discharged out of cus- 
tody by the officer, the court refused to grant a rule nisi to 
stay proceedings in an action commenced for an escape, saying 
that they would not try the merits of the action on affidavits (e). 
But where a sheriff' had arrested the defendant on a ca. sa,, 
issued erroneously on a recognizance of bail taken in C. P., and 
discharged him out of custody on payment of debt and costs, 
which money the sheriff' refused to pay over, in consequence of 
having received a notice that the money belonged to the assig- 
nees of the defendant, who had become bankrupt ; the Court of 
Common Pleas relieved the sheriff' from an action commenced 
against him for an escape, allowing the plaintiff' to litigate his 
right to the money on the money counts (/). 

(a) Pitcher v. Bailey, 8 East, 171 ; (cl) Dalt. 139; Ridgvvay's case, 3 

Eyles V. Faikney, Peake's N. P. C. Rep. 52. 

144,1).; Barnes, 373; Dalt. 138. See (c) Sherwood u. Benson, 4 Taunt. 

alsoDyer,275; Plowd.36a. 631. 

(6) SheritTs of Norwich v. Brad- (/) Wooden v. JMoxon, 6 Taunt, 

shaw. Cro. Eliz. 53. 490 ; 2 Marsh. 186, S. C. 

(c) See ante, 203. 



( 218 ) 



CHAPTER VIII. 

TlIK SlIEKll'i's DUTY IN THE EXECUTION AND RETURN Oi 
PROCESS OF OUTLAWRY. 

Sect. I. — Of the Exigent and Writ of Proclamations. — In what 
Cases and in what Manner a Party may j^yoceed to 
Outlawry. — Exigent, how executed. — Return, how 
tnade. — JVrit of Proclamations, on Outlawry in 
Civil Actions ; on Lidictments ; ivhen required, how 
made. — Sheriff's Return, form of; into what Office 
made, — Fees thereon. 
II. — Of the general and special [Frits of Capias Utla- 
galum ; how executed. — Bail, how taken on. — Sj)p- 
cial Capias Utlagatum, how executed. — Form of the 
Inquisition. — Sheriff's Return. — Preference between 
several Writs of Capias Utlagatum ; Fees thereon. 
— Actions against the Sheriff. — Restitution. 



Section I. 

Of the Exigent and Writ of Proclamations. 

Ill what cases ^T tlic comition law, vvhercver a capias lay, a person might be 
outlawry lies, outlawed, but not Otherwise («) ; indeed, for some time after the 
Conquest, so penal were the consequences of outlawry (the 
punishment whereof was death), that no man could have been 
outlawed except for felony (b). In early times, however, persons 
were outlawed on all indictments for offences at the common 
law, as well for misdemeanors (c) as for treason or feiony ; but 
it seems that a person cannot be outlawed in an action, or in- 
dictment on a statute, unless it be given expressly by such 
statute, as in the case of prcemunire ; or impliedly, as in cases 
made treason or felony by statute ; or where a recovery is given 
by an action in which such process lay before, as in the case of 

(a) Bac. Abr. Outlawry (A) ; Co. LiU. 128. 
Litt. 128. (c) Rex v. Wilkes, 4 Burr. 2557, 

(h) Bracton, lib. 5, p. 425 ; Co. 8 ; Co. LiU. 128. 



OUTLAWRY. 



219 



a forcible entry (d). At the common law, in civil actions chai-. vm. 

, . , . . . . SECT. I. 

where a capias lay m process, as m trespass m ct arvus, a pro- 

cess of outlawry lay also (e). And by several statutes (/) 
(which introduced the capias) process of outlawry lies, as in the 
actions of account, debt, detinue, replevin {g), actions on the 
case {K), and several other actions. Outlawry is either on 
mesne process before, or on final process after, judgment. For- 
merly, in the Queen's Bench, a person could not be outlawed 
either before (j) or after {1c) judgment, except the proceedings 
were by original. In the Common Pleas, a person might be 
outlawed either on a common quare clausinnf regit [I), or on a 
sj)ecial original. But in the Exchequer a person could not be 
outlawed, as the plaintiff could not proceed there by original (m). 
An inferior court could not in any case, for the same reason, 
award process of outlawry (?i). At the present day, the writ of 
capias being no longer the commencement of an action, but all 
actions being commenced by writ of summons, the mode of pro- Mode of pio. 
ceeding to outlawry in a civil action before judgment is regulated omiawry." 
by the Uniformity of Process Act, 2 Will. 4-, c. 39 ; the third 
section of which enacts, that " in case it shall be made appear by 
affidavit, to the satisfaction of the court out of which the process 
issued, or, in vacation, of any judge of either of the said courts, 
(' his majesty's superior courts of law at Westminster,' sect. 1), 
that any defendant has not been personally served with any 
such writ of summons as hereinbefore mentioned, and has not, 
according to the exigency thereof, appeared to the action, and 
cannot be compelled to do so without some more efficacious 
process, then and in any such case it shall be lawful for such 
court or judge to order a writ o{ distringas to be issued, directed 
to the sheriff of the county wherein the dwelling-house or place 
of abode of such defendant shall be situate, or to the sheriff of 
any other county, or to any other officer to be named by such 

(d) Bac. Abr. Outlawry (A). (k) Ciewsv.Bayles.Cio. Eliz.215 j 

(e) 35 Hen. 6, 66; 22 Hen. 6, 13-, lLeon.329. 
Rast. Ent. 293; 10 Rep. 72. (0 Barnes, 324. 

(/ ) Co. Liu. 128 ; Bac. Abr. Out- (m) Horton v. Peake, 1 Price, 306. 

lawry (A) ; 25 Edw. 3, c. 17. («) See Ward v. Elleyn, Cro, ,Tac. 

(g) 25 Edw. 3, c. 17; Earl of 251; 1 Sid. 248 ; 1 Keb. 890, 908; . 

Banbury i'. Wood, 2 Ld. Raym. 987 ; Doug. 62. See also Williams v. Lord 

Salk. 5, S. C. ; 6 Mod. 84. Bagot, 3 Barn. & Cress. 772 ; 5 

(h) 19 Hen. 7, c. 9. Dowl. & Ry. 719, S. C. 

(i) See Davis i'. Isaac, 1 Sid. 159. 



220 OUTLAWRY. 



SECT. I. 



CHAP. VIII. court or judge, in order to compel the appearance of such de- 
fendant; wliici) writ of distri7iga.'i shall be in the form, and with 
the notice subscribed thereto, mentioned in the schedule to this 
act, marked No. 3 ; which writ of distringas and notice, or a 
copy thereof, shall be served on such defendant, if he can be met 
with, or, if not, shall be left at the place where such distringas 
shall be executed ; and a true copy of every such writ and 
notice shall be delivered together therewith to the sheriff or other 
officer to whom such writ shall be directed ; and every such 
writ shall be made returnable on some day in term, not being 
less than fifteen days after the teste thereof, and shall bear teste 
on the day of the issuing thereof, whether in term or in vacation; 
and if such writ of distringas shall be returned 7wn est inventus 
and nulla bona, and the party suing out such writ shall not 
intend to proceed to outlawry or waiver, according to the autho- 
rity hereinafter given, and any defendant against whom any such 
writ of distringas issued shall not appear at or within eiglit days 
inclusive after the return thereof, and it shall be made appear 
by affidavit to the satisfaction of the court out of which such 
writ of distringas issued, or, in vacation, of any judge of either 
of the said courts, that due and proper means were taken and 
used to serve and execute such writ of distringas, it shall be 
lawful for such court or judge to authorize the party suing out 
such writ to enter an appearance for such defendant, and to pro- 
ceed thereon to judgment and execution." 

The 5th section of the same act enacts, " that upon the 
return of non est inventus and md/a bona as to any defendant 
against whom such writ of distringas as hereinbefore men- 
tioned shall have issued, whether such writ of distringas shall 
have issued against such defendant only, or against such defend- 
ant and any other person or persons, it shall be lawful, until 
otherwise provided for, to proceed to outlaw or waive such 
defendant by writs of exigi facias and proclamation, and other- 
wise, in such and the same manner as may now be lawfully done 
upon the return of non est inventus to a pluries writ of cajnas ad 
respondendum issued after an original writ : provided always, 
that every such writ of exigent, proclamation, and other writ, 
subsequent to the writ of distringas, shall be made returnable on 
a day certain in term ; and every such first writ of exigent and 
proclamation shall bear teste on the day of the return of the writ of 
distringas, whether such writ be returned in term or in vacation ; 



OUTLAWRY. 221 

and every subsequent writ of exigent and proclamation shall chap. vm. 
bear teste on the day of the return of the next preceding writ; ^^^'^' '' 
and no such writ of distringas shall be sufficient for the purpose 
of outlawry or waiver, if the same be returned within less than 
fifteen days (o) after the delivery thereof to the sheriff or other 
oflScer to whom the same shall be directed (p). 

The 6th section provides, " that, after judgment given in any 
action commenced by writ of summons under the authority of 
this act, proceedings to outlawry or waiver may be had and 
taken, and judgment of outlawry or waiver given, in such man- 
ner and in such cases as may now be lawfully done after judg- 
ment in an action commenced by original writ; provided always, 
that every outlawry or waiver had under the authority of this 
act may be vacated or set aside by writ of error or motion, in 
like manner as outlawry or waiver founded on an original writ 
may now be vacated or set aside." 

The effect of this statute and of the 1 1 Geo. 4 & 1 Will. 4, 
c. 70, s. 14, is, that a defendant may now be outlawed in the 
Exchequer as in any other of the superior courts {q) ; but the 
writ of capias ntlagaturn and inquisition are returned into the 
office of the queen's remembrancer; and on an application to 
traverse the inquisition, the affidavit must be intituled in that 
office, and the counsel must be instructed by a sworn clerk (r). 

Justices of oyer and terminer, and justices of the peace in 
their sessions, have power to award process of outlawry upon 
indictments found before them (5). 

A peer, or a member of the House of Commons, cannot be 
outlawed, excepting on an indictment ; but upon an indictment 

(0) There must be fifteen c/ea?- days Dowl. 10; Nugee v. Swinfoid, 9 

between llie delivery and the return Dowl. 1038; Round v. Brown, 1 

of the writ; Chambers ■«. Smith, 12 Dowl. N. S. 860. 

M. & VV.2. If made returnable on (q) 2 Dowl. 42. See 2 Will. 4, 

a Sunday, it is a nullity ; Rlorrison «. c. 39, s. 7, whereby the Lord Chief 

Mauley, 1 Dowl. N. S. 773. Baron is required lo appoint a fit per- 

(p) As lo the cases in wliicli a son, holding some other olhce in the 

dislringas will be granted for the pur- Court of Exchequer, to execute the 

pose of proceeding to outlawry, the duties of a filacer, exigenter, and 

requisites of the writ, &c. see Hewitt clerk of the outlawries in that court. 

V. Melton, 3 Tyiw. 822; Fraser v. (r) 6 M. 6c W. 278. 

Case, 9 Bing. 464 ; 4 M. & Scott, (s) Bac. Abr. Outlawry (B). But 

720, S. C. ; Jones u. Price, 2 Dowl. \.hey annothsue a. capias ntlngatnm ; 

42; Reay «. Youde, 2 M.&W. 188; the record of outlawry must be re- 

Vere r. (jowai, 3 Bing. N. C. 503; turned into the Queen's Bench and 

4 Scott, 287, S. C. ; LewisD. Davison, thence a capius vtlagalum issues; 

1 C. M.&.R.655; 3 Dowl 272,S.C.; Dalt. 406. A capias must issue be- 

Partridge v. Wallbank, 2 M. & \V. fore the exigent; 6 Hen. 6, c. 1 ; 8 

893; Simpson v. Lord Graves, 2 Hen. 6, c. 10 ; 10 Hen. 6, c. 6. 



222 OUTLAWRY. 

CHAP. VIII. for a misdemeanor, as for a libel, riot, or the like, process of out- 
. ^^^^' ^' — lawry will lie against a peer(<), A person outlawed was sup- 
posed to be put out of the law ; but women are not said to be 
outlawed, but waived ; for as wonnen were not sworn to the law 
by taking the oath of allegiance, (as men anciently were, when 
of the age of twelve years or upwards,) therefore a woman can- 
not be outlawed (u) ; and, for the same reason, an infant under 
the age of twelve years cannot be outlawed(a;). 
Of the writ 1 he writ of cx'igi facias is the first proceeding after the return 

otexiyent. of ?2ora est inventus and nulla bona to the distringas (y). It must 
be tested on the day of the return of the distringas ; but it is 
not necessary that it should be actually sued out on that day (a). 
After judgment, it may be issued on the return of non est in- 
ventus to the cajnas, without an alias or pluries{a) ; but for this 
purpose the capias must have a fixed return, and the exigi facias 
cannot be grounded upon a capias returnable immediately after 
execution, under 3 & 4 Will. 4, c. 67 {b). The writ of exigi 
facias is directed to the sheriff of the county where the venue in 
the action is laid, or where the indictment is found, commanding 
him to cause the defendant to be required from county court to 
county court, or from busting to busting, if in London. And if 
there be x\oi five county courts between the teste and return of the 
writ of exigi facias, there issues upon the sheriff's return there- 
to an exigent de novo, with a clause directing the sheriff to allow 
the several county courts at which the defendant has been 
already required, thence called the allocatur exigent. 
Exigent how Th^ mode in which the sheriff should execute the writ of exi- 
gent is by calling upon the defendant, at each county court after 
the receipt of the writ, to appear ; and the sheriff must not 
omit any county court, for if a county court intervene between 
any of the exactions without the defendant being demanded 
there, it is error (c). On mesne process, if the defendant 

(t) 2 Hal. P. C. 199, 200 ; Bac. (s) Lewis v. Davison, 1 C. M. & 

Abr. Outlawry (C). The court will R. 655 ; Vere y. Gowar, 3 Bing. N. 

not, therefore, grant a distringas to C. 503 ; 4 Scott, 287, S. C. 

proceed to outlawry against a peer ; (a) Tidds Prac. 128, 8th edit. See 

Taylor v. Lord Stuart de llothsay, 2 Reg. Gen. H. 2 Will. 4, r. 94. 

Dowl. N. S. 121. (h) Lewis D. Holmes, 16 Law J, 

(w) Co. Lilt. 122 b; Litt. 186; 430, Q. B. 

Middleton's case, Cro. Jac. 358; (c) Plowd. 371. And it would 

Haiman's case, 1 Roll. Rep. 407. appear that if there be five county 

(x) Co. Litt. 128 a ; 2 Roll. Abr. courts between the teste and the re- 

805 ; Fitz. Outlawry, 11. turn of the exigent, although only one 

(y) Bac. Abr. Outlawry (B^. or two after the receipt of the writ; 



to be exe- 
cuted. 



WRIT OF EXIGENT HOW EXECUTED RETURN. 223 

appear on tlie exigent, the sheriff* may take bail from him as in ciiap.vhi. 

ordinary cases (e). But after judgment, if the defendant appear _sectjJ^ 

or be taken on the ex'igcnt, the sheriff* must keep him in close 
custody, as on a ca. sa. In criminal proceedings, where the de- 
fendant is not bailable, as in treason or felony, it is clear that 
the sheriff" should keep the defendant in custody ; but before 
judgment, if the defendant appear upon the exigent, issued on 
an indictment for a misdemeanor, it is apprehended that the 
sheriff* might take a recognizance for his appearance (c/) ; but 
after judgment it is clear that he could not, but that he should 
keep him in safe custody (e). After being five times demanded, 
if proclamations have been duly made, the defendant is de- 
clared to be outlawed by the coroner of the county in the county 
court (/). The judgment of outlawry is not complete unless it 
has been entered on the rolls, and it is not sufficient to state simply 
that the writ of exigent was duly returned by the sheriff'(^). 

Great particularity is required in the return to the exigent, ^*|,'""' ^""''^ 
for as the consequences of outlawry are considered so penal, 
any irregularity will be fatal. As if an exigent issue against 
several persons, one of whom is a woman, and the return be 
that they were qiiinto exacti and outlawed, it is bad, for it should 
have been that the woman was waived (h). The sheriff* must 
return that the defendant was demanded at his county court, 
and must show that the county court was holden in and for the 
county whereof he is sheriff", otherwise it is bad : therefore, a 
return stating that the defendant was demanded at my county 
court holden at S., in the county of N., without saying for the 
county of N., was holden to be bad(i). The return must par- 
ticularly specify the days, by naming the day and year of each 

yet if the sheriff return that the cle- (e) 4 Burr. 2537. 
fendant has been demanded at the (/) Dalt. 240. And if the out- 
five county courts, this is regular. iawry be on tlie day that the aUocaluv 
See Taylor v. Waters, 3 Dowl.6c Ry. exigent bears teste, it is bad ; Archer v. 
575; 2 Bar. & C. 353, S. C. Sed Archer, Cro. Jac. 660; Palm. 280, 
vide Volet V. Waters, 3 D. & R. 55. S. C. 

(c) See Tidd's Prac. 130, 8th edit. (g) Attorney-General w. Rickards, 

(d) Dalton, 26, And see Ben- 14 Law J., Chan., 363. 

gough D. Rossiter, 4 T. R. 505 ; S, C. (h) Middleton's case, Cro. Jac. 

in error, 2 H. Biac, 418, where it was 358. See also 1 Rol. Rep. 407. 

decided that the sheriff could not take (i) Rex v. Wilkes, 4 Burr. 2563. 

a bail-bond from a person arrested by And see Whiting's case, 2 Roll. Abr. 

him on a capias issuing from the 802, and other cases cited in Burr, 

([uarter sessions on an indictment. 2563. 



024 OUTLAWRY. 

CHAP. VIII. occasion on wliicli the defcMidant was demanded (j) ; and if the 
_Ai':!:i:__ year be not added to tlie day on whicli the demand is alleged to 
be made, the return will be bad (A). It is said to be necessary 
to state the year as the year of the king's or queen's reign (0- 
If the sheriff return that the defendant was demanded on five 
several county courts between the teste and return of the writ or 
writs of exigent, the proceedings are regular, although some of 
those days of exactions were he/ore the delivery of the writ or 
writs of exigent to the sheriff (m)- 1''"^ "^"""^ ^^ ^^^^ coroner by 
whom outlawry was pronounced must be inserted in the return 
of quinto exactus, and he must be stated to be coroner, but the 
coroner need not sign the return («). Where there are not five 
county courts between the teste and the return of the exigent, 
the sheriff should return this, in order that the plaintiff may 
issue an allocatur exigent (o). It is said that it is not a good 
return to say that the defendant is dead, as an excuse for the 
sheriff not executing the exigent, for it is the sheriff's duty to 
call the defendant at all events (;)). If the defendant be in the 
sheriff's custody at the time of the delivery of the writ of exi- 
gent to the sheriff, or before the quinto exactus, the sheriff 
should return this (<y). If a supersedeas have been delivered to 
the sheriff before the return-day of the exigent, this should be 
returned by the sheriff (r). 
Of the pro- In addition to the exigent, a writ of proclamation was intro- 

c'ivrprocced- d"ced by the statute 6 Hen. 8, c. 4, which, requires it to be 
ing9. directed to the sheriff of the county of which the defendant is 

called or described in the original, for there he was supposed to 
dwell. But the writ of proclamation in civil proceedings is now 
governed by the statute 31 Eliz. c. 3, s. 1, which enacts, that 
" in every action personal, wherein any writ of exigent shall be 
awarded out of any courts one writ of proclamation shall be 
awarded and made out of tlie same court, having the day of 

(j) Rex V. Almon, 5 T. R. 202. (o) See return, Yiost, Append, c. 8, 

(/c) Id. ibid.; 2 Roll. Abr. 802, s. 1. 
pi. 8. (p) Dalt. 239: sed qiiere. It is 

(/) Fer BuUer, J., 5 T. R. 205. questioned by Dalton (239), whether 

But see Crosse's case, Haidr. 6, or not the sheriff should proceed in 

contra. case of the death of the king, but it 

(m) Taylor n. Waters, 3 Dowl. & appears that he should. 
Ry. 575; 2 B. & C. 353,S,C. But (7) Dalt. 239. See form, p«s(, 

see Volet v. Waters, 3 Dowl. & Ry. Append, c. 8, s. 1. 
,55. (»•) See form, post, Append, c. 8, 

(n) Rex V. Yandell, 4 T. R. 533. s. 1. 



PROCLAMATIONS. 



225 



teste and return, as the said writ of exigent shall have directed chap. vm. 
and delivered of record to the sheriff of the county where the U— 



defendant at the time of the exigent so awarded shall be dwelling, 
whicli writ of proclamation shall contain the effect of the same 
action ; and the sheriff of the county, unto whom any such 
writ of proclamation shall be delivered, shall make three pro- 
clamations, one in the oj^en county court, another at the general 
quarter sessions of the peace, in those parts where the defendant 
at the time of the exigent awarded shall be dwelling, and the 
third one month at the least before the quinto exactus, by virtue 
of the said writ of exigent, at or near to the most usual door 
of the church or chapel of that town or parish wliere the de- 
fendant shall be dwelling at the time of the exigent awarded ; 
and if the defendant shall be dwelling out of any parish, then 
in such place as aforesaid of the next adjoining parish in the 
same county next adjoining to the place of the defendant's 
dwelling ; and upon a Sunday immediately after divine ser- 
vice (5); and tliat all outlawries had and pronounced, where- 
upon no writs of proclamation shall be awarded and returned 
according to the form of this statute, shall be utterly void and 
of none effect." 

By the statute 4 & 5 Will. & Mary, c. 22, s. 4, made per- w,it of pm- 

_ "^ clamalion on 

petual by 7 & 8 Will. 3, c. 36, s. 4, it is enacted, " that upon the indicimems. 
issuing of any exigent out of any of their majesties' courts against 
any person or persons for any criminal matter, before judgment 
or conviciion, there shall issue out a writ of proclamation, bear- 
ing the same teste and return, to the sheriff or sheriffs of the 
county, city or town corporate, where the person or persons in 
the record of the said proceedings is or are mentioned to be or 
inhabit, according to the form of the statute made in the one- 

(s) But by the statute 1 Vict. c. 45, doors of all the churclies or chapels 

all proclamations theretofore made in v;iihin such parish or place; and such 

churches or chapels during or after notices, when so affixed, shall be in 

divine service aie to be reduced into lieu of and as a substitution for the 

writing, and copies thereof, either in several proclamations and notices so 

writing or in print, or partly in writing theretofore made as aforesaid, and 

and partly in print, shall, previously shall be good, valid and effectual to all 

to the commencement of divine ser- intents and purposes. Affixing the 

vice on tiie several days on which such notice on the principal door of each 

proclamationshad thertoforebeenmade church or chapel of the Establishment 

in the church or chapel of any parish is sufficient ; Ormerod v. Chadwick, 

or place, or at the door of any church 16 M. & W. 367. 
or chapel, be affixed on or near to the 



226 



OUTLAWRY. 



CHAP. VIII. and-tliirtietli year of the reign of Queen Elizabeth, which writ 
^^^^' '' of proclamation shall be delivered to the said sheriff or sheriffs 
three months before the return of the same." 

In what cases This last Statute only extends the provisions of the statute 
of Elizabeth to criminal cases before judgment, but leaves un- 
touched cases of outlawry in criminal matters after conviction; 
in such case no proclamation is required {t). The writ of pro- 
clamations should have the same teste and return as the exigent. 
The writ, when issued into a different county from that into 
which the exigent issued, is called a foreign proclamation. 

How made. The sheriff makes his warrant to his bailiff, authorizing him 
to make proclamations according to the exigency of the writ. 
In making the proclamations, the order prescribed by the 
statute must be followed, first, at the county court, next at 
the sessions, and, last, by affixing notice on the church door 
on a Sunday, before divine service. If the first Sunday 
next after the quarter sessions happen to be the return day of 
the writ, the proclamation may be made on that day, and so 
stated in the return. The proclamation must be affixed to the 
door of the parish church of the last residence of the defendant 
in the county ; if it be the church door of the parish whereof 
the defendant was styled in the writ, and where he lived when 
he gave a bond, the foundation of the action, that parish not 
being his residence at the time of proclamation made, the pro- 
clamation is void (ii). This last proclamation on the church 
door must be made at least one month before the quinto ex- 
actus (x). 

Sheriff's re- The sheriff should return to the writ of proclamations, that he 
has caused the defendant to be proclaimed, either generally, 
according to the form of the statute (y), or specially, setting 
forth the times and places when and where the proclamations 
were made (s). If there be not a Sunday after the sessions and 
before the return- day of the writ, the return must allege that 
proclamations were made at the county court and at the sessions, 

(t) Eex v. Wilkes, 4 Burr. 2559. riff's hands, see Volet v. Waters, 3 

(u) Rayer v. Cooke, 3 Bar. & Dowl. & Ry. 55. 

Cress. 529; 5 Dowl. & Ry. 392, (t/) Tidd's Prac. 8th ed. 130, 139. 

S. C. It may be questionable whether this 

(x) Taylor v. Waters, 2 Bar. &c return would not be too general ; Rex 

Cress. 353 ; 3 Dowl. & Ry. 575, v. Wilkes, 4 Burr. 2559. 

S. C. As to a return of proclamation (s) See form, Append, c. 8, s. 1. 

made before the writ was in the she- 



tarn 



PROCLAMATIONS. 



227 



but, because there was no Sunday after the sessions, the third chap. vm. 

proclamation could not be made; so if only one proclamation ^'''^^''' 

were made, as if there were no quarter sessions between the 
teste and return of the writ of proclamation, the return must 
agree with the fact (a). The sheriff should also return, that the 
defendant was outlawed by the coroner ; but the sheriff may 
return (if the fact be so) that the coroners were absent, or that 
only one coroner was there, who refused to pronounce the out- 
lawry (b). 

When the exigent and writ of proclamation are returned, they into what 
should be taken to i\ie filacer in the Queen's Bench ; but in the turned. 
Common Pleas the exigent is taken to the clerk of the outlawries, 
and the writ of proclamation filed with the exigenter (c). 

The sheriff is not entitled to any fee for making the procla- Fees thereon, 
mations at the county court or at the sessions; but by the 31 
Eliz. c. 3, he is entitled to a fee of one shilling for the procla- 
mation at the church door {d ). As to the fee for the warrant, 
see ante, p. 103. 

Formerly no averment could be made against the sheriff's Reversal of 

1 • p • 1 • 1 -r 1 1 outlawry for 

return to the writs of exigent or proclamations, but if the de- want of pro- 
fendant were outlawed without proclamations, his only remedy 
was by action on the case against the sherifr(e). But now, by 
the 31 Eliz. c. 3, the outlawry may be reversed for want of 
proclamations as prescribed by that statute. 



clamations. 



Section II. 

Capias Utlagatum. 

On the return of the exigent, the next process is the writ of Ofihe general 
«,., 1--11 iji "'"' *p*<='ai 

capias utlagatum ; of this there are two kinds, the general and the writs of 

capias utla- 
gatum. 
(a) Where the proclamation is bad, be given, but in general in such case it 

so as it is considered as no proclama- is required in the alternative ; Waters 

lion, the bail, by the 31 Eliz. e. 3, v. Taylor, 2 B. &C. 353; 3 Dowl. 

s. 3, on reversing the outlawry, must & Ry. 675, S. C. 

be given to answer the condemnation (6) Dalt. 240. 

money ; Raver v. Cooke, 3 Bar. & C. (c) Tidd's Prac. 130, 8th edit. 

529; 5 Dowl. & Ry. 302, S. C. (d) The sheriff is also entitled to 

Where there is only an irregularity in one shilling for his return. 

making the proclamations, it is op- {e) Bro. Action sur le case, 122. 

tional how the court will order bail to 

Q 2 



228 OUTLAWRY. 



CHAP. VIII. special capias utiagatum. The general writ commands the 

! — L. sheriff not to omit by reason of any liberty, but that he take the 

defendant and have him in court on the return day, to do and 
receive what the court shall consider of him in that bel)alf(_/). 
The special writ of capias utiagatum commands the sheriff to 
take the defendant in the same manner as the general writ, and 
also " to inquire by the oath of honest and lawful men of his 
county what goods and chattels, lands and tenements he hath, 
or had on the day of his outlawry, or at any time afterwards ; 
and by their oath to extend and appraise the same according to 
their true value ; and to take them into the king's hands, and 
safely keep them, so that he may answer to the king for their 
true value and issues of the same, making known what he shall 
do thereupon to the court on the return day(g-)." 
How ese- In executing a capias utiagatum, even on civil process, it 

appears that the officer may break open the outer door of a 
house to take the defendant or his goods (Ji). The writ is a non 
omittas, and therefore the sheriff may execute the writ within a 
liberty without sending his mandate to the bailiff of the liberty; 
a capias utiagatum in civil suits cannot be executed on a Sun- 
day (i). The death of the defendant in a civil suit determines 
the outlawry {j). But in criminal cases, outlawry works an 
entire forfeiture of the outlaw's estate, both real and personal. 
Where the outlaw dies after the teste of the special capias utia- 
gatum, it would appear that the sheriff still should proceed and 
hold the inquisition, and leave the representatives of the outlaw 
to obtain restitution in the Court of Exchequer, for the personal 
chattels are forfeited by the outlawry (^). If a. feme sole be 
waived, and she marry after the exigent, but before the outlawry, 
she may nevertheless be taken on a capias utiagatum (I). And 
if the defendant has become bankrupt, and obtained his certifi- 
cate, by which the cause of action would be barred, yet the 
sheriff must take him on the capias utiagatum ; nor will the 

(/) See Forms, Reg. Brev. 138; (i) Osborne v. Carter, Barnes, 319. 

Tidd's Forms, 51, 5lh edit.; Arch- ( /) See 1 Tidd's Prac. 141. 8th ed. 

bold'sForms, 523, 524. (k) Salk. 395; Bac. Abr. Out- 

(g) Tidd's Forms, 51, 52; Arch- lawry(D)2. 

hold's Forms, 524. (/) White v. Dunster, Barnes, 

(/i) Rex V. Bird, 2 Show. 87. Sed 321 ; see Briscoe v. Kennedy, 2 Wils. 

vide Golds. 179; 4 Leon. 41; Moore, 127. 
609; Cro, Eliz. 908; Yelv, 28. 



CAPIAS UTLAGATUM. ' 229 



courts discharge liim excepting on putting in special bail (wz). chap. vm. 

But a bankrupt cannot be arrested on a capias utlagatum during ^ '. — '— 

the period of protection given hiin by the Bankrupt Act {cinte, 
p, 139) ; and if he be, the Court of Bankruptcy will discharge 
him (n). 

At the common law, the sheriff could not have taken bail and in what cases 
discharged the defendant, arrested by him on a capias utla- ma/tTue bail 
gatum; this case is particularly excepted out of the 23 Hen. 6, ^"la/atum! 
c. 9 ; and by the stat. 13 Car. 2, stat. 2, c. 2, s.4, it is expressly 
enacted "that no sheriff, &c. shall discharge any person or 
persons taken upon any v/rit of capias utlagatum out of custody, 
without a lawful supersedeas first had and received for the 
same." But by the statute 4 & 5 Will. & Mary, c. 18, s, 4, 
" If any person outlawed in the Court of King's Bench, other 
than for treason and felony, shall be taken and arrested upon 
any capias utlagatum out of the said court, the sheriff making 
the arrest may, in all cases where special bail is not required by 
the said court, take an attorney's engagement under his hand to 
appear for the defendant, and reverse the outlawry, and may 
therefore discharge the defendant from such arrest. And in 
those cases where special bail is required by the said court (o), 
the sherifT shall and may take security by bond, with one or more 
sufficient surety or sureties, in tlie penalty of double the sum 
for which special bail is required, and no more, for his appear- 
ance by attorney, in court at the return of the writ, and to do 
and perform sucli things as shall be required by the same court, 
and, after such bond taken, may discharge the defendant from 
the said arrest." And by section 5 of the same statute, in case 
the defendant shall not be able to give security as aforesaid, 
before the return of the writ, in cases where special bail is re- 
quired, he shall and may be discharged whenever he shall find 
security to the sheriff for his appearance, by attorney, in the 
said court, at some return in the ensuing term, to reverse the 
outlawry, and to do and perform such other thing and things as 
shall be required by the said court. This statute only in terms 

(m) See Beauchainp D. Tomkins, 3 (o) The attorney's engagement 

Taunt. 141 ; Sunimeiville i;. Watkins, would now be sutficient in all cases, 

14 East, 536 J Absthorpe i;. Fiske, 8 special bail being no longer necessary 

Dowl. 68. except in the case provided for by I 

(?0 Ex parte Hemsley, 1 Deac. & & 2 Vict. c. 110, s. 4. 
Ch. 16. 



230 OUTLAWRY. 



CHAP. VIII. applies to writs of capias utlagatum issuing out of the Court of 
^^^'^' "• Queen's Bench, but it has been the practice to take bail as pre- 
scribed by this act on such writs issuing out of the Common 
Pleas ( js). It would appear that the sheriff has not power to 
bail a defendant under this statute in any criminal case ; but it 
is worthy of observation, that although treason and felony are 
expressly, yet that misdemeanors are not, excepted out of the 
operation of the act ; and it appears to be doubtful whether the 
act is or is not confined to civil actions only (y). However, it 
has been decided that a defendant is not bailable on a capias 
utlagatum upon an indictment for a misdemeanor after convic- 
tion (r). 
Special The sheriff, on the special capias utlagatum, is first required 

capian ufla- i i /> i i • i • /^ i i i i 

yatum, b.w to take the defendant, which if done, and he appear to the 
original action, it is said not to be usual to extend the goods, 
and to impanel a jury. But if the defendant be not taken, it is 
the sheriff's duty to impanel a jury, who are to inquire of the 
goods and chattels (*) of the defendant, including his debts (i) and 
choses in action, and also of his leasehold and freehold lands 
and tenements ; and to appraise the goods, and to extend the 
value of the lands, &c.(u). But the sheriff cannot extend copy- 
hold lands (a;), or trust property (?/), on a capias utlagatum. 
Witnesses should be summoned to attend the execution of the 
inquiry ; and when the inquest is made, the sheriff is to take 
possession of the goods and chattels found by the inquest to 
belong to the defendant at the time of the outlawry (s), or pur- 

(p) Sell. Prac. 398. See observa- (u) See Bank of England v, Reid, 

tions of Chambre, J., 3 Taunt. 144. 8 Dowl, 851. 

(9) It seems to have been the opi- (x) Rex v. Budd, Paiker, 190. 

nion of some of the judges in Rex »;. (y) It seems that the statute 29 

■yVilkes (4 Burr. 2540), that the sla- Car. 2, c. 3, s. 10, does not apply to 

tute only applied to civil actions. this case; Tidd's Pr?c. 134, Bih edit. 

(j) Rex V. Wilkes, 4 Burr. 2539. Sed vide 2 Roi. Abr. 807, 1. 12. 

(s) As to what may be taken as the (2) Bui goods which the outlaw 

goods and chattels of the defendant, hath in autre droit, as executor or 

see post, chap. 11. administrator, cannot be taken, 11 

(() Bullock t). Dodds. 2 B. & Aid. Hen. 6, 17, 37 : Cro. Eliz. 575, 851 j 

276; Bio. Forfeiture, 107 ; see also 2 Rol. Abr. 806 ; nor a term of years 

Slade's case, 4 Rep. 95; Lane, 23; which the outlaw hath as executor, 2 

Lutw. 329, 1513; Dalt.83. Thecases Leon. 5, 6 ; Ander. 19; Moore, 100; 

in 2 Rol. Abr. 452, 806 ; Cro. Eliz. Dyer, 309 ; or if a feme covert be 

675, 851, contra, are denied to be waived, the term she had shall not be 

law both in Bullock v. Dodds and in forfeited, for that belongs to her hus- 

Slade's case. band, Dalt.83, cit.9 Hen. 6, fol. 52. 



CAPIAS UTLAGATUM. 231 



chased between the outlawry and the time of taking the inqui- chap. vm. 
sition(i); and also the sheriff may extend and take possession ^'^^"^•"' . 
of the leasehold tenements in the occupation of the defendant. 
But it is otherwise in the case of the freehold lands of the de- 
fendant ; for although the king is entitled to take the profits of 
the freehold lands on an outlawry in a civil suit, yet the defend- 
ant cannot be disturbed in the occupation. The sheriff, upon a 
levari facias in an outlawry, in taking for the king all the profits 
of the lands, may mow or sever and take all the corn and grass 
growing on the land, and may take the feed and herbage arising 
on the grounds, &c., and the rents of the farmers, as the party 
might ; but he cannot plough, sow, or grant the same, or cut or 
crop the trees growing, or take fixtures, for they are part of the 
freehold (c). If the outlaw, after the outlawry and before the 
inquisition, make a lease of or alien his freehold land {d), the 
profits of such land cannot be extended on a capias utlagalum 
in a civil action ; it is, however, otherwise as to the personal 
chattels of the outlaw, for immediately by the outlawry they are 
forfeited ; but the profits of the land or chattels real are not 
forfeited until inquisition taken (e). Cattle levant and couchant 
on the land may be extended on a capias utlagatum, as the 
issues and profits of the land (/). If a defendant, who is out- 
lawed in a personal action, have an advowson of a church, which 
becomes void during the time the outlawry is in force, the queen 
shall present to the church ( o-). 

The inquisition should set forth, with convenient certainty, Form of the 
the appraised value of the goods, the particulars of the debts, 

(6) Cartli. 442. feitedlo the queen, of whomsoever they 

(c) Dalt. 82, 83; Rockley v. Wil- are holden ; and in case of outlawry 

kinson, T. Jones, 100; Windsor v. of felony to the lord by escheat of 

Say well, 1 Lev. 33 ; Plowd. 541 ; whom they are immediately holden. 

Hard. 106. Indeed il is said that the See Hac. Abr. Outlawry (D) 1. 

corn on the ground cannot be taken, ((i) Windsor d. Say well, I Lev. 33; 

but only the rent; 2 Rol. Abr. 807. 1 Keb. 57, 74, 76, S. C. ; see Ha- 

Arrearages of rent, reserved on lease mond's case. Hard. 176. 

for life, are not forfeited by outlawry, (e) Britton v. Cole, 1 Ld. Raym. 

for they are real ; otherwise if upon a 305 ; Salk. 395, S. C; Carth. 441 ; 

lease for years; Hetl. 164. There is a 5 Mod. 112. Deer in a park cannot 

distinction between outlawry in cri- beextendedon a ca/;2as ut/u^iHiiw; 10 

minal and in civil cases; outlawry Hen. 7, 7 a. 

on an indictment for treason or felony (/) Britton v. Cole, 1 Ld. Raym. 

corrupts the blood, and causes an ab- 305 ; Salk. 395, S. C. 

solute forfeiture of the party's estate, (^') 2 Kol. Abr. 807 ; and see Be- 
both real and personal, viz. in case of verly v. Cornwall, Cro. Eliz. 44; Andr. 

outlawry of treason his lands are for- 148. 



232 OUTLAWRY. 



CHAP. VIII. of what lands, &c. the defendant is seised or possessed, the dif- 
^^^^' "• ferent parcels, in whose tenure, and their annual value beyond 
reprises (A). The sheriff is only to take the profits on a levari 
facias according to the extended value of the lands ; if they are 
undervalued, the plaintiff should apply to the court to grant a 
melius inquirendum (i) , 
The siKriif Whatever goods and chattels the jury find to belong to the 

Tmo his pos- defendant, the sheriff should seize and keep them safely until 
good"''lc! ordered, to sell them by a writ of venditioni exponas, but he can- 
lounrt. j^Qj. gg]j ti^gjTQ before he receives such writ (k) ; nor does he take 

into his hands the debts of the defendant, or the profits of his 
freehold estate, until he is ordered so to do by the Court of Ex- 
chequer. After the return to the capias utlagaturn, a writ of 
venditioni exponas issues, to sell the goods, a scire facias to col- 
lect the debts, and a levari facias to levy the issues and profits 
of the lands. In levying the issues and profits of the lands, the 
sheriff, we have seen, may take cattle levant and couchant there- 
on (/) ; he may mow and sever the corn and grass, and take the 
rents as the party himself might do, but he cannot sow the 
ground or cut trees (wi). 
Return. The sheriff makes his return, when ruled, according to the 

fact ; if the defendant is not to be found, he returns non est 
inventus, or if he has taken the defendant and has him in custody, 
or has discharged him on giving bail, he returns cepi corpus ; if 
either goods or the profits of lands have been found by the in- 
quisition on a special capias utlagatimi, the sheriff should return 
the inquisition (?i) ; if the jury find that the defendant has no 
goods, S:c., the sheriff should not return the inquisition, but at 
once return that the defendant had no goods, &c. in his baili- 
wick (o). It seems to be questionable whether or not the return 
of a I'escue to a writ of capias ullagatum be good {p). If the 
sheriff return that the defendant has no lay fee, buc is rector of 
a rectory, the court will award a sequestration to the bishop {q). 

(/t) The inquisition is similar to the 305. See anie, 232, n. (c). 

inquisition on an extent, see more of {m) 2 Rol. Abr. 807. 

that, fost, and forms, Appendix to the (n) See forms of returns, fost, Ap- 

chap. on Extents. pend. chap. 8, s. 2. 

(i) blaster ti. VVhitefield, Hard. 106. (o) See returns and mode of mak- 

(fc) Stringfellow v. Brownesoppe, ing them, ]wst, chap. 11, and forms, 

Dyer, 67; Proctor's case. Dyer, 223 ; Append, thereto. 

Dr. Drury's case, 8 Rep. 284 ; Rex (p) Dalt. 217-, Fifz. Retorne, 110. 

V. Capel, 2 Show. 481. (q) Rex v. Hind, 1 C. & J. 389 ; 

(0 Britten v. Cole, 1 Ld. Raym. Rex v. Armstrong, 2 C. M. & R. 205. 



CAPIAS UTLAGATUM. 



233 



In such case the return ought to state tlie name and situation of chap. vin. 
the benefice (r). If the sheriff is bound to take the jwsse comi- ^^"' "' . 
talus, he cannot excuse himself, although the defendant or the 
goods were rescued : as the statute of Westminster 2, by which 
the sheriff is compelled to raise the posse comitatus, has been held 
to apply to writs of execution only and not to mesne process (*), 
perhaps it may be held that rescue would be a good return to 
capias utlagatum, where the outlawry was on mesne process, but 
not where the outlawry was after judgment (<)■ When the capias 
utlagatum is returned, it should be filed, with the inquition an- 
nexed, with the filazer, as clerk of the exigents and outlawries 
in the Queen's Bench (u), or with the clerk of the outlawries in 
the Common Pleas, and should afterwards be carried into the 
office of the custos brevium (x) ; from whence a transcript is sent 
to the Exchequer (y). 

The following rules were laid down (z) to be the law respect- Preference 

- , 1 1 • T<- i 1 '" case of se- 

mg the preference between several outlawries: — tirst, where verai ouiuw- 
there are two outlawries at different times, the first inquisition ""• 
shall prevail ; secondly, where there are two outlawries on one 
day, the fii'st inquisition shall be preferred ; thirdly, where there 
are two inquisitions in one day, the first outlawry shall be pre- 
ferred ; fourthly, where there are two outlawries on one day, 
and both inquisitions on one day, there the first lease shall be 
preferred. 

As to the fees on the execution of process in outlawry, see Fees for exe- 

mi 1 • rr> • -11 1 culing a ca- 

the table of fees, ante, 103. The sherifi is not entitled to pound- pianutiaga- 
age until the execution of a venditioni exponas {a). The special 
capias utlagatum in a civil action is considered so far in the na- 
ture of a private execution, that the landlord is entitled, under Landioid's 

^ ■ f» 1 1 • » c y claim forrent. 

the Stat. 8 Anne, c. 14, to be satisfied his years rent out of the 
money in the sheriff's hands (6). 

If the sheriff discharge a defendant arrested by him on a Aciions 

'^ against the 

capias utlagatum issued upon an outlawry upon mesne process, sberiir. 
without taking an undertaking or bond as prescribed by the 
statute of William and Mary, he is liable to an action on the 

(r) Rex V. Powell, 1 M. & W. 321. (y) 1 Tidd's Prac. 134, 8th edit. 

(s) See ante, 73, 96, and Cro. Jac. (2) In Rex v. Willes, Parker, 90. 

419; I Rol. Rep. 388, 440; Cro. («) Graham v. Grill, 2 Waule & 

Eliz. 868 ; 2 Lev. 144 ; 3 Lev. 46. Sel. 294. 

(t) But see Bunb. 194. (6) Graves v. d'Acastro, Bunb. 

(u) Reynolds v. Adams, 3 T. R. 194. See also St. John's College, 

578. Oxford, v. Murcott, 7 T. R. 259. 

(x) Id. ibid. 



234 OUTLAWRY. 

CHAP. vni. case (c) ; but allowing the defendant to go at large at all would 
^"^^^^ "• be an escape if the outlawry were after judgment, for which 
escape an action would lie (cZ). In either case, it appears that the 
action may either be by the plaintiff in his own right (e), or qui 
tarn pro dom'ind regind qiiam pro scipso (./). But it has been de- 
termined that an action on tlie case will not lie against the she- 
riff for neglecting to extend or seize the goods and lands of a 
person outlawed on a capias utlagatum, because it was to the 
king's loss ; and the court said that the benefit to be derived by 
the plaintiff from the seizure of the goods, in compelling the 
defendant to appear, was so very remote as not to be considered 
as a ground to support an action ; but if it had been shown that 
the sheriff might have had the body, and had neglected to do it, 
there might have been more reason to support the action (g-). 

Rfsiimiiun. Where the outlawry is reversed before a sale under a venditione 
exponas, the defendant shall have a writ of restitution to the she- 
riff, whereby the defendant shall be restored to his goods or 
terms seized by the sheriff under the capias utlagatum, and not 
to the mere value of them as on a fieri facias, for we have seen 
that without a venditioni exponas the sheriff has no authority to 
sell goods taken by him on a capias utlagatumiji). 

(c) Bonner v. Stokeley, Cio. Eliz. Hoe's case, 5 Rep. 91 ; 1 Roll. Abr. 
652; Cooke v. Champness, Fitzg. 778, S. C. ; Eyre v. Woodfine, Cro. 
265. Eliz. 278. Where a termor outlawed 

(d) Woifu. Davison, Salk. 319. for felony granted his term to the 

(e) Moor v. Sir Geo. Keignalls, plaintiff, and the outlawry was re- 
Cro. Jac. 620 ; Leighton v. Garnons, versed by writ of error, it was held 
Cro. Eliz. 706; 1 P. Wms. 693. that the plaintiff might maintain Ires- 

(/ ) Barrett v. Winchcomb, Cro. pass for the profits between the rever- 

Jac. 360; 1 Roll. Rep. 78, S. C. ; sal and the assignment; for the out- 

Parkhurst v. Powell, Cro. Jac. 532. lawry when reversed was as if no out- 

{g) Dawson v. The Sheriffs of Lon- lawry had taken place ; Ognel's case, 

don, 2 Vent. 89. Cro. Eliz. 270. 

(/i) Proctor's case, Dyer, 223 b ; 



( 235 ) 



CHAPTER IX. 

THE sheriff's DUTY IN THE EXECUTION AND RETURN OF THE 
WRIT OF HABEAS CORPUS. 

In what Cases it lies. — Horv executed. — Return thereto. — Penalty 
for not obeying the Writ. — Actions for false Return to, Escape, 
^c. — Sheriff's Fees on. 

The writ of habeas corpus lies in civil as well as criminal cases, or ihe writ 
In criminal cases the writ and proceedings depend on the corpus, and 
statute 31 Car. 2, c. 2 («). The writ of habeas corpus, in civil cas"s h lies, 
cases, is a judicial writ commanding the sheriff, or other officer 
to whom it is directed, to have the body of the defendant, 
together with the day and cause of taking and detaining him, 
before the court or a judge, on a day certain in term time, or 
immediate, to answer or satisfy the plaintiff, or generally to do 
and receive what the court or judge shall consider of him. 
Hence it is called, according to the subject-matter, a writ of 
habeas corpus ad respondendum, ad satisfaciendum, or ad facien- 
dum, subjiciendum, et recipiendum, though the latter is usually 
called a habeas corpus cum causa {b). There is also another 
writ of habeas corpus, ad testificandum, to bring up a prisoner 
who is a material witness to give his testimony. By the 44 
Geo. 3, c. 102, it is declared to be lawful for any of the judges 

(a) The provisions of this statute has power to issue a habeas corpus ad 

are extended by the statute 56 Geo. sulijiciendum under the seal of and 

•3, c. 100, "for more effectually se- returnable in any other of those courts; 

curing the liberty of the subject." In re Wilson, 14 Law J., Q. B. 105. 

The court will not grant, as a matter If granted by a judge of the Queen's 

of course, a writ nf habeas corpus, but Bench, it must issue from the crown 

only upon special circumstances laid side of the court; Easton's case, 12 

before them, Hobhouse's case, 3 Ad. & E. 645. The superior courts 

Bar. &c Aid. 420 ; Chit. Rep. 207, have also, it seems, a common law 

S. C; and even a judge in vacation, power to discharge a peisou from 

under 31 Car. 2, c. 2, is not bound illegal imprisonment for a criminal 

to grant the writ only upon view of the matter; Ex parte Besset, 6 Q. E. 481. 

warrant of commitment. Id. ibid. (b) Tidd's Prac. 349, 350, 8th 

See Ex parte Boothroyd, 15 M. & W. edit. It is grantable either in vaca- 

1. Since 1 & 2 A'ict. c. 45, s. 1, a tion or in term, 
judge of any of the superior courts 



If'iG HABEAS COUPUS. 

cHAf. IX. Qf t]je courts of King's Bench, Common Pleas, or Exchequer, 
in England or Ireland, to award a writ of habeas corpus for 
bringing any prisoner detained in any prison to give evidence 
before any of the said courts, or any sitting at Nisi Prius, 
or before any other court of record in the said parts of the 
united kingdom (c). The writ of habeas corpus cum causd 
lies for the defendant to remove himself, or for the plaintiff 
to remove him, from the custody of the sheriff or other officer 
in whose custody he is, into the custody of the marshal of 
the Queen's Prison. This writ also lies for the hail of the 
defendant to bring him up, and surrender him in their dis- 
charge to the custody of the marshal, and that whether the 
defendant be in custody in a civil suit or on a criminal ac- 
count ((/). By the statute 1 & 2 Philip & Mary, c. 13, s. 7, 
it is required that every writ of habeas corpus shall be signed 
with the proper hand of the chief justice, or, in his absence, of 
one of the justices of the court, out of which the writ issued. 
The sheriff is not obliged to execute a writ of habeas corpus 
unless it be so signed (e). 

How exe- The Writ of habeas corpus cum causa is returnable immedi- 

ately (/). A warrant is directed and delivered to an officer, 
generally the gaoler, or one of the turnkeys of the county gaol, 
directing him to convey the defendant before the judge in Lon- 
don, according to the exigency of the writ. The officer should 
bring him to the judge's chambers in due and convenient time(g-) 
without permitting him to wander under pretence of such writ(/<), 

(c) This application ought to be 1 Marsh. 166; 3 Moore, 259 ; 1 Brod. 
matle to a judge at chambers; Erown & Bing. 23, S. C; 2 N. R. 245; 
r. Gisborne,2 Dowl. N,S. 963. See 1 Bing. 221. 

also 43 Geo. 3, c. 140, as to the (e) Rex i;. Roddara, Cowp. 672. 

power of granting a hubeaa coipus to By the stat. 31 Car. 2, c. 2, s. 3, 

convey a prisoner before commission- writs of habeas corpus under that sla- 

ers of bankrupts and courts iiiaitia!. tute are required to be maiked " per 

Arclibold's Bankrupt Laws, 176. stat lUitm tricesima prima Caroli Secundi 

(d) Sharp V. SheriflF, 7 T. R. 226 ; regis." 
Daniel v. Thompson, 15 East, 78; (/) Bettesworth v. Bell, 3 Burr. 
Taylor's case, 3 East, 232 ; Brandon 1875. The rule M. 1654, sec. 7, K. 
V. Davis, 9 East, 154. But they B,, in this respect, was held to have 
cannot obtain this rule until the bail fallen into desuetude, 
have justified; id. ibid. This writ does (g) See id. ibid. 
not lie in C. P. to remove a defendant (h) Reg. Gen. M. 1654, s. 7, K. 
from criminal custody to be charged B. ; R. M. 1654, s. 10, C. P. 
in that court with a civil action. See 



culecl 



HOW EXECUTED. 



237 



The officer should not deviate from the direct road, nor allow chap, ix. 
the defendant to go at liberty in conveying him to the judge's 
chambers, for if he do, it would be an escape (?) ; he must also 
take force sufficient to prevent the defendant from being res- 
cued, as a rescue of the defendant would make the sheriff liable 
to an action for an escape (A:). By the preamble of the 31 Car. 
2, c. 2, it is stated, " that great delays had been used by 
sheriffs, &c., to whose custody the king's subjects had been 
committed for criminal or supposed criminal matters, in making 
returns of writs of habeas corpus to them directed, by standing 
out an alias and plur'ies," &c. ; and it is enacted, that whensoever 
any person shall bring any habeas corpus (l) directed unto any 
sheriff, &c., for any person in his custody, and the writ shall be 
served upon such officer, or left at the gaol with the under 
officer, the said officer shall bring the prisoner up to the court 
or judge, and certify his cause of detention within three days after 
such service thereof, (if within the distance of twenty iniles, or if 
beyond twenty and within one hundred miles within ten days ; 
and if above one hundred miles within the space of twenty days,) 
unless the commitment were for treason or felony, upon pay- 
ment or tender of charges of bringing the prisoner, to be ascer- 
tained by the judge or court that awarded the same, and in- 
dorsed on the writ, not exceeding Is. per mile, and on security 
given by his own bond to pay the charges of carrying him back 
if remanded, and that he will not make any escape by the way. 

The sheriff should return to the writ of habeas corpus the The sheriflf's 
cause of the arrest, and of the detention of the defendant (??z). 
A return, that he the sheriff had no such person in his custody, 
nor had he on the day of issuing the (pluries) writ, or after- 
wards, was holden bad, for he might have had him on the day 
of issuing the first writ of habeas corpus («). A return, that 
before the delivery of the writ of habeas corjms, he had delivered 

(i) Roll. Abr. Escape (D) 9; on that point. It would seem from 

Cro. Car. 14, 466; Balden r. Temple, the preamble, and the other parts of 

Hob. 202. the act, that it was meant to apply to 

(k) Compton I). Ward, Stra. 429. writs of habeas corpus in criminal 

(/) In Huntley v. Luscomb, 2 matters only. See 2 Bos. & Pul. 

Bos. & Pul. 530, it was m\Ae a ques- 531. 

tion whether this section, and the 5th (m) See several returns, post, Ap- 

section of the act, were confined to pend. c. 9. 

writs of /ia^ens corpus in criminal mat- (ii) Rex v. Sir R. Viner, 2 Lev. 

tcrs, or extended to all writs of ha- 128, 129. 

beas corpus : the court gave no opinion 



238 HABEAS CORPUS. 

CHAP. IX. the woman to her husband, and knows not where she is, nor 
would he produce her, is good (o), A return, tliat the defend- 
ant was not in the sheriff's custody at the coining of the writ 
is good (p) ; and for the purpose of fihng the writ, it is good to 
return that before the coming of the writ, the defendant was dis- 
charged out of his custody by an order of sessions, without say- 
ing what sessions, what order, or that he was discharged by due 
course of law (q). A return, that he the gaoler had not, at the 
time of receiving the writ, nor had he since had, the body of 
the within named M. G. detained in his custody, so that he 
could not have her before, &c., as he is commanded, was held 
bad, because it did not show that M. G. was not under the 
gaoler's control (r). A return, that the defendant is sick in 
prison, or a lunatic, is good ; but if the sheriff go out of office, 
and a new sheriff be appointed before the return, the return 
should be made in the name of both, by the old sheriff that he 
delivered the body to the new sheriff, by the new sheriff lan- 
guidus (5). The sheriff should state fully and correctly in his 
return the causes or warrant of commitment, upon which the 
prisoner is committed or detained, that the court may judge 
whether the prisoner be lawfully committed or not : and if by 
the return it appear that he is detained without a sufficient cause, 
the court will order his discharge (t). A reasonable degree of 
certainty, however, is all that is required ; the court will not 
regard the return with the same strictness as a pleading (u) ; 
and if the sheriffs return be informal, the court will allow it to 
be amended according to the fact(,r), before or after it is 
filed (?/), and although the amendment be not assented to on 
behalf of the prisoner (s). 

(0) Rex V. Wright, Stra. 915. Dowl. 451 ; Reg. v. Dunn, 12 Ad. & 
(p) Rex V. Bethuen, Andr. 281. E. 599 ; Easton'scase, id. 648 ; In re 
(9) Id. ibid. Brenan, 16 Law Jou:n, Q. B. 289; 
(r) Rex V. Winton, 5 T. R. 89. In re Fell, 3 Dowl. & L. 384. See 
(s) Bac. Abr. Habeas Corpus (B) Rex v. Dagger, 1 Dowl. & Ry. 460; 
7; Rex v. Clarke, 3 Burr. 1362. 5 B. & Aid. 791, S. C, as to commit- 
Upon the return of languidus there ment by an ecclesiastical court for con- 
issues a habeas corpus licet langnidus ; tumacy ; see also Burdett v. Abbott, 5 
see forms, Tidd's Forms, 145, 5th Dow, 199, 

edit. (u) In re Fell, 3 Dowl. & L. 384. 

(0 See the various returns in Com. (x) Chambers'scase, Cro.Car. 133; 

Dig. tit. Hab. Corp. (E) 2 3 ; and per Hale, C. J. 1 Mod. 103. 

the preceaents in Hobhouse's case, 2 (1/) Watson's case, 9 Ad. & E. 731. 

Chit. Hep. 207 ; Canadian Prisoners" (s) In re Clark, 2 Q. B 619 ; 2 G. 

case, 5 M. & W. 34; Watson's case. & D. 780, S. C; Ex parte Lord, 16 

9 Ad. & E. 731 ; Reg. v. Evans, 8 M. & W. 462. 



RETURN, &C. 239 

The sheriffs return is pr'imd facie taken to be true, and need chap, ix. 
not be supported by affidavit, until impeached. It may be im- How far con- 

. elusive. 

peached, and the truth inquired into, but whether upon affidavit 
or by pleading does not seem to be fully settled (a). 

If the sheriff do not obey the writ of habeas corpus, he will Proceedings 
be liable to an attachment in the first instance, without the obejiug 

t • • 02 • wril. 

issuing of an alias. Thus, where the return made is msuthcient, 
as stating an insufficient reason for not bringing the defendant 
up upon the habeas corpus, the court will grant an attachment 
immediately on the return (6). By the stat. 31 Car. 2, c. 2, s. 
4, if the officer refuse to bring up the body of the prisoner (e), 
or to make a return ; or on demand by prisoner, or by some 
person on his behalf, shall refuse, within six hours after demand, 
to deliver a true copy of the commitment (J), the head gaoler, 
or other officer in whose custody the prisoner is, shall forfeit to 
the party grieved 100/. for the first offence, and for the second 
offence 200/., and be incapable of holding or executing that 
office. 

For a false return to a writ of habeas corpus, an action on the Action 
case is the only remedy for the party grieved ; and an infor- sheriff lor 
mation or indictment at the suit of the king(e). If the officer, e^cl^e, ikc.' 
in conveying the defendant to the judge's chambers, suffer him to 
go at large, and have him not at the return of the writ, it is an 
escape ; and when tl>e sheriff is ordered to bring up the body of 
a defendant by habeas corpus, as it is his duty to convey him by 
the shortest and most convenient road to the court at West- 
minster, if he deviates from such direct road, or lets the defendant 
go about his affairs, although he has him at the return of the 
writ, it is an escape (/). And if a habeas corpus issue in one 

(a) See Hawk. P. C. c. 2 ; Ex Stra. 915, 

parte Beecliing, 4 B. & C. 136; (c) See ante, p. 237, n. (i), to 

Watson'scase, 9 Ad. & E. 731 ; Reg. what cases this section extends. 

V. Dunn, 12 Ad. & E. 599; In re (</) In Huntley v. Luseombe, 2 

Wilson, 14 Law J., Q. B., 105. Bos. & Pul. 530, it was held that a 

(b) Rex V. Winton, 5 T. R. 89; demand upon the under turnkey of the 
Com. Dig. Hab. Corp. (E) 3. And prison for a copy of the warrant of 
if the officer refuse lo remove the commitment was not a sufficient de- 
prisoner on account of his fees not mand to make the head gaoler liable 
being paid, the court will grant an to the penalties of this act. 
aUachment; T. Jones, 178; Rex v. (e) Bac. Abr. Habeas Corpus (B )8 . 
Armigers, 1 Keb.272,280. It would It is said lliat no action will lie until 
appear that before the court will grant the return be filed ; Salk. 352. 

an attachment for nor making a return (/) See Roll. Abr. Escape (D) 9 ; 

lo the /i«6. 007-., there should be a rule Cro. Car. 14, 466; Hard. 476 j I 
to return the writ; Rex v. Wright, Mod. 116. 



240 



HABEAS CORl'US— RETURN. 

term to the sheriff to bring \ip a prisoner in his custody on the 
ensuing term, if he let him go at large in the meantime it is an 
escape (g-). But it is laid down by Lord Coke, that if the 
officer of the sheriff, in taking a prisoner in execution from the 
county gaol to Westminster on a habeas corpus, lodge him in an 
inn on the direct road, and the defendant of his own head goes 
at large, but the sheriff has him at Westminster on the return 
day of the habeas corpus, this is no escape (//). The sheriff is 
allowed a reasonable time in wliich he must bring up a prisoner 
on a habeas corpus ; of the reasonableness thereof the court will 
judge (?'). It was said by Hale, C. J,, that, "if, on a habeas 
corpus ad testificandum, the sheriff let the defendant go into the 
country, it is an escape. Though he be not bound to bring him 
back tlie direct way, because he may be rescued, yet he ought 
not to carry him round about a great way for the accommodation 
of the party; if he doth, it is an escape; but by the evidence 
you let him go back threescore miles, to which there can be no 
answer. A habeas corpus returnable immediate is not fixed to 
an hour, but to a convenient time (^)." The sheriff is to con- 
vey the defendant sub salvo ct securo conductii, and therefore if 
the defendant be rescued from the officer whilst in his county, 
the sheriff is liable to an action for an escape (Z). 

As to the sheriff's fees on a habeas corpus, see the Table of 
Fees, ante, 103. 

(g) Hard. 476; Roll Abr. Escape (A:1 Mosedell's case, 1 Mod. 116; 

(D)9; 1 Lord Rayra. 241 ; 1 Mod. S. C. 3 Keb. 305; Bull. N. P. 67. 

116. (/) Crompton i;. Ward, Stra. 429. 

(h) In Boylon's case, 3 Rep. 44 ; If the rescue had been in another 

Moore, 257. See ante, 203, 204. county, through which the officer was 

(i) Holdroid v. Liddell, 1 Lord conveying the defendant, would thai 

Ray m. 241 ; Balden i). Temple, Hob. huve altered the case, for there the 

202. sherifl'has no power lo raise the posse ? 



( 241 ) 



CHAPTER X. 

THE sheriff's DUTIES AND LIABILITIES IN THE EXECUTION AND 
RETURN OF A FIERI FACIAS. 

Sect. I. — How, when, and where Goods may be seized under a 
Fieri Facias. — Property in Goods, from what time 
bound. — Poundage. — To what Amount the Levy may 
be made. — Priority in case of several Executions 
between several Subjects, and between the Subject and 
the Crown. 

II. — -What things may and what may not be seized under a 
Fi. Fa. — Leases for Years; Fixtures, Growing Crops, 
and ^Agricultural Produce, how to be sold. 

III. — What shall be said to be the Goods of Defendant to he 
liable to be taken. — Equitable Interest. — Partnership 
Property. — Goods belonging to the Defendant as 
Executor, or in Right of his Wife, — Goods sold bona 
fide, where Defendant has become Bankrupt. 

IV. — Goods seized, when and how to be sold: Venditioni 
exponas: Distringas nupervicecomitem: when Goods 
may be released, Defendant giving Security for or 
paying Debt and Costs. — Sheriff's Property in Goods 
seized. — Effect of Levy. 

V. — Landlord's Claim for Rent under Stat. 8 Anne, c. 14. 

VI. — Sheriff how protected where there are adverse Claims 
on Goods seized. — Interpleader. 

VII. — Sheriff's Return; nulla bona; fieri feci; Goods rC' 
maining in hand for want of Buyers ; Supersedeas; 
Rescue ; Return in Writs against Executors. 

VIII. — Actions against the Sheriff; for the Money levied ; 
for a false Return ; for a wrongful Seizure. — Actions 
by the Sheriff. 



cuted. 



242 sheriff's duties in the execution of a fieri facias. 

CHAP. X. 

^"^^- '' Section I. 

Fieri Facias ; ivhen, where, and how executed. 

ot the writ. Xhe writ o^ fieri facias is a writ judicial, that lieth for him 
who hath recovered any debt or damages in the queen's 
courts, which writ is directed to the sheriff of the county where 
the venue is laid, and thereby the sheriff is commanded to levy 
the debt or damages, together with interest from the time when 
the judgment was entered up, of the goods and chattels of the 
person against whom the recovery is had, and to have that 
money and interest, and the writ itself, before the queen at 
Westminster, or wheresoever, &c., on the return day (if made 
returnable on a particular day), or immediately after the ex- 
ecution thereof (a). 

^.?.^J^^' When the writ is delivered to the sheriff, a warrant is made 

to one or more bailiffs, commanding them to execute the writ(fc) 
The officer, in making a levy on the goods of the defendant, 
should make an actual seizure ; but seizing fart of the goods 
in the name of the whole on the premises is a good seizure of 
the whole (c). The officer should, from the time of the seizure, 
either by himself or by some other person, keep possession of 
the goods, otherwise it might happen that they would be liable 
to be taken on a second execution (c?). If the outer door of a 

(a) Reg. Gen. Hil. 2 Vict. See county from that in which the venue 

the form, Append, chap. 10, s. 1. is laid, the Court will allow the plain- 

This writ lies within a year and a day tiff to sue out a Ji. fa. to warrant a 

after judgment, but if a party should testatum, by entering the writ, return 

after tlie year and day sue a writ and award of tes^afimi on the roll ; or 

without a sci, fa. vet the sheriff is if the first writ were not a testatum 

bound to execute it. The writ should writ, they will allow that to be 

regularly follow the judgment, and amended ; 3 T. R. 657 ; 5 T. R. 272; 

therefore a special execution is not 6 T. R. 450 ; see also 3 T. R. 388 ; 

warranted by a general judgment, I 4 Dowl. 119; 9 Dowl. 961. Al- 

T. R. 82; 7 T. R. 27 ; so execution though the writ be irregular, the 

against one is not warranted by a sheriff is bound to execute it, and of 

judgment against two, 6 T. R. 525 ; course is justified in executing it. 

see also 7 B. & C. 486 ; 1 Ad. & E. (h) See form Append, chap. 10, s. 

331; 3 Dowl. 464; 5 Dowl. 374. If 1. As to warrants in geneial, see 

a sci. fa. be issued unnecessarily, the ante, 71. 

Ji. fa. must issue on such sci. fa.; 1 (c) Cole v. Davies, 1 Ld. Raym. 

Bing. 133. Regularly a^. /a. should 725. 

issue to the sheriff of the county (d) See Blades v. Arundale, 1 M. 

where the venue is laid, before a «es- & S. 711; Ackland v. Paynter, 8 

to<7(m7z./a. issue to any other county ; Price, 95 ; see also Burr v. Fruthy, 

but if a testatum^ /a. or even a^^./a. 1 Bing. 71, S. C. nomine Burr v. 

issue in the first instance to a different Creethy, 7 Moore, 368. 



HOW EXECUTED. 

house in which the defendant's goods are placed be locked, such chap, 

outer door, we have seen, cannot be broken open to seize '- 

them (e). It has been said that this protection only applies to the 
house of the defendant himself, but that the sheriff or his officers 
may, after request to open it, break open the outer door of the 
house of a third person, to which the defendant's goods have 
been clandestinely removed (y^). But this by no means must 
be construed to mean that the house of a stranger can be 
broken open to execute aji.fa. under any circumstances; for 
the same principle that protects the house of the defendant 
from a forcible breaking, equally applies to make the house of 
every man a sanctuary. If however the officer gain admittance 
at the outer door, he may break it to release himself from the 
house (g), or he may break open inner doors, or chests, in the 
house, that are locked, to seize the goods of the defendant, 
without any request to open them(/<). So he may break open 
the outer door of a barn detached from the dwelling-house, 
even without first demanding that such door should be opened (i). 
However, although the sheriff should break open an outer door, 
or otherwise become a trespasser in executing a Jieri facias, the 
execution is good notwithstanding, and the plaintiff is entitled 
to the fruits of such levy (/c), the remedy for the defendant 
being by action (/). It seems that goods may be taken through 
the window of a house if open (m). 

The officer may seize the goods of the defendant at any time At what 
before or on the return day of the writ, if made returnable on a 
particular day, or if, as is now the usual form, it be made re- 
turnable immediately on the execution thereof (in which case 
it continues in force until it is executed (n)), he may execute it 
within a reasonable or convenient time ; and he is bound to sell 
the goods within a convenient time, without a writ of venditioni 
exponas or distringas (^o) . Aji.fa. cannot be executed on a 

(e) Ante, 75; Semayne's case, 5 Pal. 223; Lee v. Gansel, Cowp. 1. 

Rep. 92. Nor can a window be (i) Penton v. Brown, 1 Sid. 186; 

broken open in such case; Cooke's 1 Keb. 698, S. C. 

case, W. Jones, 429. (k) Brownl. 50; 5 Rep. 92. 

(/) Semayne's case, 5 Rep, 93. (I) Id. ibid. 

(g) White j;. Wiltshire, Cro. Jac. (m) 1 Roll Abr. 671, pi. 7. 

555 ; 2 Roll. Rep. 137, S. C. ; Palm. (ii) Simpson v. Heath, 5 M. & W. 

52 ; Pugh L'. Grirtiih, 7 Ad. & E. 827; 31 ; Greenshields v. Harris, 9 M. & 

3 N. & P. 189. S. C. W. 774. 

(h) Hutchinson v. Birch, 4 Taunt. (o) Clerk v. Withers, 6 Mod. 297 ; 

619; Ratcliff v. Burton, 3 Bos. & Wilbraham v. Snow, 2 Saund. 47 e; 

r2 



243 



time. 



244 



SHERIFF S DUTIES IN THE EXECUTION OF A FIERI FACIAS. 



CHAP. X. Sunday (p). The officer may, after the death of the defendant, 
°—^ on nji.fa. against him, seize his goods in the hands of his ex- 
ecutor or administrator, provided the writ bears teste before his 
death, although not delivered to the sheriff till after (^r). So, 
after the death of the plaintiff, the sheriff may execute aji.fa. 
tested in his lifetime (r), but he should not pay over the pro- 
ceeds until he is satisfied respecting the person who is personal 
representative : if there be no executor or administrator, the 
money should be brought into court, and there deposited until 
the representative of the plaintiff appear and claim it (5). If, 
while the defendant is in execution, the plaintiff dies, a rule 
may be made absolute in the first instance for the defendant's 
discharge, on the production of an affidavit by the next of kin 
that it is not his intention to prove any will or to take out 
letters of administration (t). 

The sheriff may enter the house of the defendant when the 
outer door is open to seize the goods of the defendant (m) ; and 
if the defendant has goods in the house of a stranger, the sheriff 
may enter it to execute 2l fieri facias (^x). But the sheriff is not 
justified in entering the house of a stranger on a fieri facias, 
unless the defendant's goods are actually in the house, for it is 
not a sufficient justification that he entered the house of the 
stranger on suspicion that the goods of the defendant were in 
the house (^). But the house of the defendant himself the 
sheriff is justified in entering merely on suspicion of his goods 
being there ; so, on a fieri facias against the goods of an in- 
testate, in the hands of an administratrix and her husband, the 
sheriff may legally enter the house of the husband to search for 
the goods of the intestate, though none be found therein (2). 

Brown «. Jarvis, 1 Rl. & W. 714; 5 290, S.C; 1 1 Mod 35; Ld. Raym. 

Dowl. 281, S. C ; Jacobs v. Hum- 1072. 

phrey, 2C.&C M. 413 ; Bales v. Wing- (s) Thoroughgood'c case, Noy, 73 ; 

field, 2N. &M. 831. S.C; Masoa Dyer, 76 b,; Ld. Raym. 1073 ; Clerk 

V. Paynter, 6 G. & D. 38. v. Withers, 6 Mod. 297 ; Ellis v. 

(p) Ante, 79. Griffith, 16 M. & \V. 106. 

(7) Dalt. 148; Bragner v. Lang- (t) Gore v. Wright, 1 Dowl. N.S. 

mead. 7T.R. 20; W^aghorne u Lang- 864. 

mead, 1 Bos. & Pul. 571. But a_^'./a. (h) Semayne's case, 5 Rep. 92. 

cannot be issued or executed on his (x) Ibid. 

goods, it tested after his death ; Heapy (y) Johnson 1;. Leigh, 1 Marsh. 

V. Parris, 6 T. R. 368; see also 7 565; Morrish v. Murrey, 13 M. & 

East, 297. W^ 52; Com. Dig. Execution (C 5). 

()■) Cleve V. Veer, Cro. Car. 459; (s) Cooke v. Birt, 5 Taunt. 765 ; 

Clerk V. Withers, Salk. 322 ; 6 Mod. 1 Marsh. 333, S. C. 



HOW EXECUTED. PRIVILEGE. 245 

The sheriff cannot stay on the premises for more than a reason- chap. x. 

able time to remove the goods, without the consent of the !! ' 

defendant (a). 

There are few privileges which extend to protect goods from Piiviiege. 
being taken on a Ji. fa. A royal palace, wherein either her 
majesty, her family, or her servants reside, is such a privileged 
place, that the sheriff or his officer cannot lawfully execute a^ea 
facias in such palace (&;. There are no personal privileges that 
protect the goods from being taken in execution, excepting that 
the goods of ambassadors and of their servants are privileged; 
for by the statute of 7 Anne, c. 12, s. 2, all writs whereby the 
goods or chattels of any ambassador or other public minister or 
his servants may be distrained, seized or detached, are declared 
to be void (c). In a late case it was determined that the goods 
of the servant of an ambassador, not residing in the ambas- 
sador's house, but renting and living in another house, part of 
which he let in lodgings, were liable to a distress for poor's 
rates, such goods not being necessary for the discharge of his 
duty to the ambassador (c?). The goods of a certificated bank- 
rupt, and of a person discharged under the Insolvent Debtors 
Act, are protected from being taken on afi.fa.{e) upon a judg- 
ment for a debt from which the defendant was discharged by 
his certificate, or by the order of the Insolvent Debtors Court. 
But \{ af.fa. be delivered to the sheriff to execute against any 
such person, the sheriff or his officer is not bound to take notice 
of such privilege, but may leave the party to apply to the court 
to be relieved (y). No bona aut catalla cccles'iastica can be 
seized under a feri facias {g). 

If the sheriff levy the debt and pay the money over to the Poundage. 
plaintiff, he is entitled to his poundage, although the execution 
be set aside (A). So also a sheriff, who has seized the defendant's 
goods, is entitled to poundage, if the parties compromise before 

(a) Ante, 121. s. 95, as to insolvent debtors; and 

(6) Winter r. Miles, 10 East, 578 ; see Raynes v. Jones, 9 M. & VV. 104. 

Eiderton's case, 2 Ld. Raym. 978 ; (/) Lister v. Mundell, 1 Bos. & 

6 Mod. 73, S. C; 3 Salk. 91, 284. Pul. 427. 

(c) For the decisions on this sta- (g) Dalt. 219; 2 Inst. 472; Bac. 
lute see ante. Abr. Execution ; 2 Mod. 256. 

(d) Novello V. Toogood, 1 Barn & (h) Rawstoine v. Wilkinson, 4 M. 
Cress. 554 ; 2 Dowl. & Ry. 833, S.C. & Sei. 256 ; Salk. 332. See Bullen 

(e) See 5 & 6 Vict. c. 1 10, s. 37, v. Ansley, 6 Esp. 111. 
as to bankrupts ; 1 & 2 Vict. c. 110, 



246 sheriff's duties in the execution of a FIEPa FACIAS. 

CHAP. X. the sale(/"). The sheriff is not entitled to poundage upon a 
^'^^'^•'' sum of money paid over to a landlord for rent on an execution 
under the 8 Ann. c. 14, s. 1 (k). 
Poundage Besides his poundage, the sheriff is also empowered, by the 

and fees may ,^ j ^ ,. i i • • 

be levied. stat. 43 Gco. 3, c. 46, s. 5, to levy, under an execution agamst 
the goods of a defendant (^l), the fees and expenses of the exe- 
cution, over and above the sum recovered by the judgment. 
This statute, as we have seen, does not extend to executions 
against a plaintiff for costs, nor to crown process (ra). The 
fees and expenses to be taken by the sheriff are now regulated 
by the stat. 1 Vict, c. 55, and the table of fees framed by the 
judges pursuant thereto (w). What costs and expenses fall 
within the terms of the 43 Geo. 3, c. 46, s. 5, and of the 1 Vict. 
c. 55, has been already fully considered (o). 
Property of At common law, the goods of the party against whom a writ 
defend" 111° o^ fieri fitcias issued were hound from the teste of the writ; by 
xhefi^'fa^^^ which is meant that the writ bound the property as against the 
party himself, and all claiming by assignment from or by repre- 
sentation under him(p); so that a sale by the defendant of his 
goods bond fide, excepting in market overt, did not protect them 
from s. fieri facias tested before, although not issued or delivered 
to the sheriff till after, the sale(^); although goods seized on 
2i fieri facias were not subject to a second fieri facias subse- 
quently issued but tested before (r). But by the Statute of 
Frauds, 29 Car. 2, c. 3, s. 16, it is enacted, " That no writ of 
fieri facias, or other writ of execution, shall bind the property 
of the goods of the party, against whom such writ of execution 
is sued forth, but from the time that such writ shall be delivered 
to the sheriff, under-sheriff or coroners, to be executed ; and 
for the better manifestation of the said time, the sheriff, &c., 
their deputies or agents, shall upon receipt of any such writ 
(without fee for doing the same) indorse upon the back thereof 
the day of the month and year whereon he or they received the 
same." The property in the goods is not altered by the delivery 

(0 Alchln V. Wells, 5 T.R. 470. (o) Ante, 110, 113. 

(k) Gore V. Gofton, Stia. 643. (p) Per Lord Ellenborough, C. J., 

(/) Ante, 113. See Rumsey v. 4 East, 538. 
Tuffnell, 2 Bing. 255. (./) Anon. Cm. Eliz. 174; Bailey 

(m) Ante, 113; 7 Taunt. 179; 2 v. Banning, 1 Sid. 271; Cro. Jac. 

Chit. Rep. 353. 451. 

(n) Ante, 103. (r) Payne v. Drewe, 4 East, 523. 



PRIORITY OF EXECUTIONS. 247 

of the writ to the sheriff, but remains in the defendant until chap. x. 
execution executed ; but if the defendant make an assignment ^''"'^•'' . 
of his goods after the delivery of a fieri facias to the sheriff, 
excepting by sale in market overt, the sheriff may take them in 
execution (s). This statute was passed solely to protect pur- 
chasers, and the goods are bound as against the defendant and 
his representatives as they were at the common law, and there- 
fore goods of the testator, in the hands of an executor, may 
be taken on a.Ji.fa. against his testator bearing teste before his 
death {t). 

As between two different plaintiffs, if two writs oi fieri facias Priority in 

*■ . case of seve- 

are delivered to the sheriff on the same or different days, the rai executions 

1-1 r- 1 !• 1 by the subject, 

sheriff ought first to execute that which was nrst delivered to 
him (m) ; unless the first writ was fraudulent, and then he should 
execute the other (a;). And if the bailiff, after making a seizure, 
does not keep possession, but leaves the defendant in possession 
of the goods, this is strong evidence to show that the first ex- 
ecution was fraudulent (?/). But if the sheriff levy goods in 
execution by virtue of the writ last delivered, and make sale 
of them, the property of the goods is bound by the sale, and 
the party cannot seize them by virtue of the writ first delivered ; 
but he may have his remedy against the sheriff (z). But if the 
sheriff merely seize but has not sold under the writ last deli- 
vered, he may apply that levy to the first writ, although no 
warrant issued thereon (a). Therefore, where two writs oi fieri 
facias were in the sheriff's hands at the same time against the 
same defendant at the suit of different plaintiffs, upon the writ 
first delivered the officer entered, and whilst he was in posses- 
sion, the officer under the second writ entered, and remained in 
possession until the goods were sold, which were not enough 
to satisfy the first writ ; before the sale, the defendant gave 

(s) Lowthal D. Tomkins, 2 Eq. Cas. Toussaint ?). Hartop, Holt's N. P. C. 

Abr. 381. 335; 7 Moore, 368; 1 Bing. 71, 

(t) Bragner v. Langmead, 7 T. R. S. C. 
20 ; Waghorne t;. Langmead, 1 Bos. (s) Smallcomb v. Buckingham, 1 

&Pul.571. Ld.Raym,251; 1 Salk. 320, S. C. ; 

(w) liulchinson v. Johnson, 1 T. Caith.419; Com. Rep. 35. See also 

R. 729; Sawle -;. Paynter, 1 Dowl. 1 T. R. 731, n.; Payne v. Diewe, 4 

& Ry. 307. East, 523. 

(i) Bailey y. Windham, 1 Wils. 44. (a) Jones i;. Atherton, 7 Taunt. 

(j/) Jd.i/)id.; Kemplandi). Macau- 56; 2 Marsh. 375, S. C. ; Hulchia- 

ley, Peake's N. P. C. 66. See also son i'. Johnston, 1 T.R. 729. 
Blades t). Arundale, 1 M.&Sel. 711; 



248 sheriff's duties in the execution of a fieri facias. 

CHAP. X. notice to the sheriff that he would move to set aside the first 

- fi. fa., and the judgment whereon it was founded, and upon 

that writ being set aside by rule of court, the sheriff paid the 
money over to the defendant, according to the rule: it was 
held that, on the first writ being set aside, the proceeds of the 
sale were liable to satisfy the second writ (6), and that, under 
those circumstances, a return of nulla bona to the second writ 
was a false return. So, where the first writ was founded upon 
a judgment on a warrant of attorney, but the second was in a 
bond jide adverse action, and before sale a fiat in bankruptcy 
issued against the debtor, whereby, under the 6 Geo. 4, c. 16, 
s. 108, the first writ became void, it was held that the other 
became in effect the first writ ; that the creditor who issued it 
was entitled to have his execution satisfied out of the proceeds, 
and that the assignees in bankruptcy could not first claim any 
part of them under the above section for rateable distribution 
among the creditors (c). Where the first writ is delivered with 
directions not to execute it till a future day, the sheriff is 
justified in levying under a second delivered before that day(c?). 
Where an attorney, who acted for seven different plaintiffs in 
different actions, delivered seven writs o^ Ji.fa. to the sheriff, 
in one bundle, at the same time, it was held that the sheriff 
could not call, by rule of court, upon the plaintiffs or their 
attorney, to say which writs were to have priority; but it seems 
that a return to the effect that he had received all the writs at 
the same time, and had levied under all, would under such cir- 
cumstances be a good return (e). 
or by the As against the crown, as the king is not named in the Statute 

of Frauds, an extent binds the goods from the teste of that writ. 
And if the extent be tested before or on the day of the delivery 
to the sheriff of a writ o{ fieri facias, the extent shall have pri- 
ority over the subject's execution, although it be not delivered 
to the sheriff until after ihe fieri facias, provided it be delivered 
before the goods are actually sold under the fieri facias ; if the 

(h) Saunders v. Bridges, 3 Bar. & 491 ; see also Goldschmidt v. Hamlet, 

Aid, 95. The court would have 6 Man. & G. 187 ; 6 ScoU, N. R. 962. 

allowed ihe sheriff to have paid the (d) Kemplandu.iMacauley, Peake's 

money into court, or to have retained N. F. C. 66. See Bradley i;. Wynd- 

it until indemnified, if he had made ham, 1 Wils. 44. 

application to the court for that pur- (e) Ashworth v. Ear! of Uxbridge, 

pose. 2 Dowl. N. S. 337. See Chambers v. 

(c) Graham v. Witherby, 7 Q. B. Coleman, 9 Dowl. 588. 



crowo. 



PRIORITY OF EXECUTIONS. 



249 



goods are sold under the Ji. fa. it is otherwise, for by the sale chap. x. 

the property is altered (/). The Court of Exchequer (g-) decided LL 

in one case, contrary to decisions of the Queen's Bench (Ji) and 
Common Pleas (i), that \^ a. fieri facias be delivered to the 
sheriff, and, after a seizure of goods, but before sale, an extent 
be delivered to the sheriff, tested after the delivery of the^cn 
facias, the extent shall be preferred ; and this is now settled 
law (J). And, in the Queen's Bench, process sued out by the 
crown against a defendant to recover penalties, upon which 
judgment for the crown is afterwards obtained, entitles the 
queen's execution to priority, within the statute QS Hen. 8, c. 
S9, s. 74, before the execution of a subject, issued on a judg- 
ment recovered against the same defendant prior to the queen's 
judgment, but subsequent to the commencement of the queen's 
process, the queen's writ having been delivered to the sheriff 
before the actual sale of the defendant's goods under the plain- 
tiff's execution (k). 



Section II. 
Fieri Facias — What Things may he seized under. 

The sheriff is commanded by the writ to cause the debt to be What things 
levied on the goods and chattels of the defendant. Under this Ulidera/.'/a. 
writ the wearing apparel of the defendant is not liable to be 
taken, although " if the defendant have two gowns, the sheriff 
may sell one {I)." But wearing apparel on a man's person, even 
if it does not extend to goods in the actual possession of the 
person, cannot be taken under di fi. fa., or under an extent (m); 
and before the statute 1 & 2 Vict. c. 110, nothing could be 
taken in execution which could not be sold (ra). Thus, deeds, 
writings, money, or bank notes, could not be taken in execution 

(/) Swain v. Morland, 1 Brod. & Rep. 1251. 
Bing. 370; 3 Moore, 740, S. C. {j) Giles v. Grover, 1 Clark & 

{g) Rex V. Wells and Alnutt. 16 Fin. 72 ; ■post, chap. 15, s. 2. 
East, 278, n. ; Rex v. Sloper, 6 Price, (k) butler v. Butler, I East, 338 ; 

114, 144; 8 Trice, 293. See also 1 8 Price, 364. 
Saund. 219 f, n.(i); 1 East, 338. (/) Comb. 291, 

See post, chap. 15, s. 2. (m) Sunbolf r. Alford, 3 M. & W. 

{h) Rorke V. Dayrell, 4 T. R. 402. 264, per Parke, B, 

(?) Uppom V. Sumner, 2 Blac. (n) Com. Dig. Execution (C 4). 



250 SHERirp's DUTIES IN THE EXECUTION OF A FIERI FACIAS. 



SECT. II. 



CHAP. X. on 2l fieri facias (o) ; and the courts have refused to allow the de- 
fendant's money in the sheriff's hands, whether the produce of an 
execution at the suit of the defendant himself (p), or even the 
surplus of a former execution at the suit of the same plaintiff 
against the same defendant (y), to be stayed in the hands of the 
sheriff to satisfy the present execution. 

By the 12th section of the 1 & 2 Vict. c. 110, however, it is 
enacted, " that by virtue of any writ of fieri facias to be sued 
out of any superior or inferior court after the time appointed 
for the commencement of this act, or any precept in pursuance 
thereof, the sheriff or other officer having the execution thereof 
may and shall seize and take any money or bank notes, (whether 
of the Governor and Company of the Bank of England, or of 
any other bank or bankers,) and any checks, bills of exchange, 
promissory notes, bonds, specialties, or other securities for mo- 
ney, belonging to the person against whose effects such writ of 
fieri facias shall be sued out ; and may and shall pay or deliver 
to the party suing out such execution any money or bank notes 
which shall be so seized, or a sufficient part thereof; and may 
and shall hold any such checks, bills of exchange, promissory 
notes, bonds, specialties, or other securities for money as a secu- 
rity or securities for the amount by such writ oi fieri facias 
directed to be levied, or so much thereof as shall not have been 
otherwise levied and raised ; and may sue in the name of such 
sheriff or other officer for the recovery of the sum or sums 
secured thereby, if and when the time of payment thereof shall 
have arrived ; and that the payment to such sheriff or other 
officer by the party liable on any such check, bill of exchange, 
promissory note, bond, specialty, or other security, with or 
without suit, or the recovering and levying execution against 
the party so liable, shall discharge him to the extent of such 
payment, or of such recovery and levy in execution, as the case 
may be, from his liability on any such check, bill of exchange, 
promissory note, bond, specialty, or other security ; and such 

(o) Francis t;. Nash, Rep. Temp. passed by consent. 

Hard. 53; Staple v. Bird, Barnes, (9) Fieldhouse v. Croft, 4 East, 

214. 510. If the second writ had beea 

(p) Knight v. Criddle, 9 East, 48; in the office before the goods were 

Padfield v. Brine, 3 Brod. & Bing. sold, the surplus would have been 

294; Wilkins v. Ball, 2 N. R. 376. avadable to the second execution; 3 

The case in 1 Doug. 231, contra, Bar. & Aid. 95. 



WHAT THINGS MAY BE SEIZED. 251 



SECT. 



sheriff or other officer may and shall pay over to the party suing chap. 
out such writ the money so to be recovered, or such part thereof 
as shall be sufficient to discharge the amount by such writ di- 
rected to be levied ; and if, after satisfaction of the amount so 
to be levied, together with sheriff's poundage and expenses, any 
surplus shall remain in the hands of such sheriff or other officer, 
the same shall be paid to the party against whom such writ shall 
be so issued ; provided that no such sheriff or other officer shall 
be bound to sue any party liable upon any such check, bill of ex- 
change, promissory note, bond, specialty, or other security, un- 
less the party suing out such execution shall enter into a bond, 
with two sufficient sureties, for indemnifying him from all costs 
and expenses to be incurred in the prosecution of such action, or 
to which he may become liable in consequence thereof, the ex- 
pense of such bond to be deducted out of any money to be reco- 
vered in such action." 

Under this section it has been decided that money received 
by the sheriff in redemption of goods pledged with the defend- 
ant, who was a pawnbroker, is seizable under a Ji. fa. (r). A 
mere debt cannot be seized ; and therefore, under process of 
execution, the sheriff cannot seize a debt due from a former sheriff, 
as the surplus of a former execution, to the defendant (s) ; nor 
does the section apply to money in the hands of a third party as 
trustee for the defendant, but only to money in the hands of the 
debtor himself (i); therefore, money deposited in court in one 
action, pursuant to 43 Geo. 3, c. 46, s. 2, and 7 & 8 Geo. 4, 
c. 71, s. 2, cannot be paid out to an execution creditor in another 
action (m). So where the sheriff has seized and sold goods under 
a ji. fa., and holds in his hands the produce of the sale, such 
produce is not liable to seizure under a fi. fa. against the exe- 
cution creditor, at whose suit the levy was made, unless the 
sheriff has appropriated and set apart some specific money, as 
that which is to be paid over under the first/. /a. (a:). A lease 
for years, or an annuity for years {y), being merely chattel in- 

(r) Squire v. Huetson, 1 Q. B. (x) Wood d. Wood, 4 Q. B. 397 ; 

308. see also Masters v. Stanley, 8 Dowl. 

(s) HaiTison «. Paynter, 6 M. & 169. 

W. 387 ; 8 Dowl. 349, S. C. (v) York v. Twine, Cro. Jac. 78. 

(0 Robinsoni;. Peace, 7 Dowl.93. Seel vide Doct. & Stud. 53; Dalton, 

(?t) France ?). Campbell, and Win- 127. 
ter D, Campbell, 9 Dowl. 914. 



252 sheriff's duties in the execution of a fieri facias. 



CHAP. X. terests, like all other chattels, may be taken and sold under a 
^'^"' "• writ of fieri facias ; and although the sheriff cannot ascertain the 
length of time that the term has to run, yet he should levy and 
sell the term notwithstanding; for in the assignment by the 
sheriff of a term of years, of which the defendant is possessed, 
it is sufficient to recite that the defendant is possessed of a term 
of years yet to come and unexpired ; for it cannot be intended 
that the sheriff should know the exact commencement and end 
of the terra (s). And it is more prudent for the sheriff so to 
assign it; for if, instead of stating the defendant's interest thus 
generally, he attempt to state it particularly, and fail, the vendee 
will not have a good title (a). But the sheriff cannot sell under 
a fieri facias any estate of freehold, as an estate for life, or an 
estate jmr aider vie (/>) ; but it seems that an outstanding term, 
vested in a trustee upon trust to attend the inheritance, may be 
seized under an execution against the cestui que trust, the owner 
of the inheritance (e). The sheriff can only give the vendee of 
a term of years under a fi. fa. the right of possession ; he has 
no power to put the defendant forcibly out of possession {d) ; 
the vendee must bring his ejectment to get into possession (e): 
if, indeed, he can peaceably obtain possession, he may enter and 
possess himself of the premises without bringing ejectment (_/). 
Until actual execution of an assignment by the sheriff, the 
vendee has no legal title, but the legal interest remains in the 
debtor (g-), even as against the execution creditor. 
Fixtures. Fixtures annexed to the freehold cannot be taken under a fi. 

fa., for they do not flill within the definition of goods and chat- 
tels. Therefore, on a fi. fa. against the owner of a house, fix- 
tures put up therein by him, which would go to the heir and not 

(s) Palmer's case, 4 Rep 74 ; do. (c) Doe d. Phillips v. Evans, 1 C. 

Eliz. 584, S, C. ; Taylor v. Cole. 3 T. K. & M. 450. 

292. See also Eaton v. Souihby, (d) Rex v. Deane, 2 Show. 85. 

Willes, 131. If the lease be seized (e) Id. ibid.; 3 T. R. 295. 

before the writ is returnable, the as- (j^) Taylor v. Cole, 3 T. R. 295. 

signmenl by him after the return day See also Taunton v. Costar, 7 T. R. 

is valid, and conveys a good title to 431 ; Turner j;. Meymott, 1 Bing. 158 j 

the purchaser; Doei). Donston, IB. 7 Moore, 574, S. C. See also Doe 

& A. 230. d. Stevens v. Lord, 6 Dowl. 256. 

(a) Palmer's case, 4 Rep. 74; (g) Due J. Hughes y. Jones, 9 M. 

Cro. Eiiz. 584, S. C. 6c W. 372 ; 1 Dowl. N. S. 3o2, S. C. ; 

(6) Harbert's case, 3 Rep. 13; Playfair v. Musgrove, 14 M. & VV. 

Johnson v. Streete, Comb. 291. 239. 



WHAT THINGS MAY BE SEIZED. 



253 



to the executor, cannot be seized and sold by the sheriff(/<) ; chap. x. 

but fixtures which may be removed by the tenant during his _!^ '. L_ 

term may be seized and sold on a fi- fa- against the tenant (/'). 
It often becomes a question what fixtures are and what are not 
removable by the tenant ; it has been determined that buildings 
of brick and mortar, erected on land for the purposes of 
agriculture by the tenant during the term, are not removable 
by him {h), although if erected by the tenant for the purposes 
of trade it would be otherwise (/). So a conservatory erected 
on a brick foundation (wj), or the machinery of a mill {n), or 
ranges, ovens, or pots(o), erected and fixed by the tenant during 
the term, have been held not to be removable by him. But 
parts of a machine, which are usually valued between out-going 
and in-coming tenants, are removable by the tenant (p). Fix- 
tures erected by the tenant during the terra for the purposes of 
trade, if he covenant to yield up all erections made during the 
term, are not removable by him [q). Even if the tenant sever 
from the freehold fixtures which he cannot lawfully remove, the 
sheriflT cannot take them on a f. fa. against the tenant, for on 
being severed they become the property of the landlord (r). 

Corn and other crops, growing or sown on the ground, which Growing 
go to the executor, may be sold under a fieri facias (^s). Thus, agiicnhura! 

fi • ^ / ,\ 111 produce, how 

growmg potatoes may be seized (i); but clover, rye to be sold. 

grass, or artificial grass, growing under corn, cannot be seized 

on a fi. fa. (m) ; nor can a growing crop of meadow grass {x) ; 

{h) Wynne v. Ingelby, 1 Dowl. & Ry. 247 ; 5 B. & Aid. 625, S. C. 

Ry. 247 ; 5 B. & Aid. 625, S. C. (p) Davis v. Jones, 2 Bar. & Aid. 

(0 Poole's case, Salk. 368 ; Min- 165. 

shall V. Lloyd, 2 M. & VV. 459, fer (7) Thresher v. The East London 

Parke, B. Water Works Company, 4 Dowl. & 

(k) Elwes V. Maw, 3 East. 28. Ry. 62; 2 Bar. & Cres. 608, S. C. ; 

See also Steward v. Lombe, 4 Moore, Naylor v. Collinge, 1 Taunt. 19. See 

281; 1 Brod. & Bing. 506, S. C. also 7 Taunt. 188; 2 Marsh. 495, 

(/) Penton i.. Robart, 2 East. 87 ; S. C; 4 Bar. & Aid. 206. 

Elwes V. Maw, 3 East, 44. And as (r) Farrant v, Thompson, 2 Dowl. 

to what fixtures pass to the assignees & Ry. 1 ; 5 B. & Aid. 826, S. C. 

of a bankrupt tenant, see Horn v. (s) Dalton, 556. 

Baker, 9 East, 215; Storer?;. Hunter, (<) Evans v. Roberts, 5 B. & C. 

5 Dowl. & Ry. 240 ; 3 B. fit C. 368, 832, per Bayley, J. See also as to 
S. C. what are emblements, Graves v. Weld, 

(m) Buckland v. Bulterfield, 4 5 B. & Ado). 105; 1 Williams on 

Moore, 440; 2Brod.& Bing.54, S. C. Executors, 555, et seg. (3d edit.) 
(«) Farrant v. Thompson, 2 Dowl. (u) 56 Geo. 3, c. 50, s. 7. 

6 Ry. 1 ; 5 B. & Aid. 826, S. C. (1) See Evans v. Roberts, 5 B. & 
(0; Wynne v. Ingleby, 1 Dowl. ex. C. 832, yer Bayley, J. 



254 sheriff's duties in the execution of a fieri facias. 

rriAP. X. nor can growing fruit (?/). Where a ^en\/acms was delivered 
^'^^^' "• to the sheriff against the tenant of certain land whereon certain 
crops were standing, and before the return of that writ a writ 
of habere facias possessionem of the same land was delivered to 
the sheriff, issued on an ejectment on a demise laid anterior to 
the teste of the ^my«cm5, it was held that those crops were not 
liable to be taken on xhe fieri facias, inasmuch as the tenant was 
a trespasser from the day laid in the declaration in ejectment (z). 
Where corn sold under a fi. fa. is not ripe, the vendee has a 
reasonable time after it is ripe to cut it and carry it away ; and 
whilst remaining on the land it is not liable to a distress for rent, 
for during all that time it is considered in custodid legis, the 
goods in the vendee's possession being protected, in order to 
render the execution available, although the sheriff's duty ended 
on the execution of the bill of sale (a). 

Formerly, the duty of the sheriff in the sale and disposition of 
corn or other crops or manure taken on a farm, under a fieri 
facias against a tenant, was the same as in the sale of any other 
goods and chattels ; but now, where there is any covenant or 
contract in writing between landlord and tenant, stipulating that 
such crops, &c. shall be spent on the farm, (which act does not 
relate to produce which the tenant may consistently with his 
lease remove from the farm), the sale of such goods is regulated 
by the statute 56 Geo. 3, c. 50, the first section of which pro- 
vides that where there is a covenant or contract in writing (and 
whereof the sherifl has notice) for spending agricultural produce 
upon the farm, the sheriff shall not remove the crops, &c., from 
the farm for the purpose of sale. The tenant is required to give 
notice to the sheriff of such covenants or written agreements, 
and the sheriff is required to give notice by the post to the land- 
lord or his agent of his possession of such agricultural produce ; 
and in case of the silence of the landlord or agent, the sheriff 
must delay the sale till the latest period he can do (6). And 
where there is a covenant or written contract between landlord 
and tenant, the sheriff is to assign or make an agreement with 
his vendee that he is to consume the produce according to the 

(y) Rodwell v. Phillips, 9 M. & Bing. 362 ; 5 Moore, 79, S. C. ; 

W. 505, per Lord Abinger, C. B. Wright v. Dewes, 1 Ad. & Ell. 641 ; 

(z) Hodgson V. Gascoigne, 5 Bar. 3 N. & M. 790, S. C. 
& Aid. 88. (h) Sect. 2. 

(a) Peacock i>. Purvis, 2 Brod. & 



WHAT THINGS MAY BE SEIZED. 255 

terms of such covenant or written agreement. If there be no chap. x. 
such covenant or agreement, then the vendee is to stipulate to ^^^^' "' 
spend the produce of the farm according to the custom of the 
country, and the vendee is allowed the use of the barns, &c. on 
the farm (c) for that purpose without the sheriff or vendee being 
a trespasser (c?) ; nor are such crops remaining on the premises 
liable to a distress for rent (e). The sheriff is to allow the land- 
lord to bring actions in his name against the vendee for breaches 
of the agreement in assigning the crops, &c., the landlord in- 
demnifying the sheriff before commencing his action (/). 



Section III. 
Fieri Facias. — fVhat Interest in Goods may be taken. 
Respecting the interest of a defendant in goods which will Goods 

^ ° . "^ . . . pawned or 

render them liable to be taken on a j^eri facias ; the sheriff leased. 
cannot sell absolutely goods which are pawned or gaged for a 
debt with the defendant, nor goods demised or let to him for 
years (^r). 

Where a house and the furniture therein were let to A. for 
six months, and during that period the landlord and A. entered 
into a written contract for the sale of the house and furniture to 
A., the purchase-money to be paid on the completion of a good 
title, but, before the completion of a good title, the contract was 
rescinded by consent, it was held that, under this contract, the 
furniture never vested in A. as his property, and therefore could 
not be taken in execution under aji.fa. against him (A). 

The sheriff, however, it seems, is not liable to an action for 
selling the entire property, unless he is informed of the defend- 
ant's having only a special property in the goods (?'). 

The sheriff cannot take in execution goods held by the de- 
fendant in right of a lien (A:). Again, goods pawned or gaged 

(c) Sect. 3. (ft) Lanyon v. Toogood, 13 M. & 

(d) Sect. 10. W. 27. 

(e) Sect. 6. (i) Dean v. WhiUaker, 1 C. & P. 
(/ ) Sect. 4. 347 ; sed qiMre, see Chit. Archb. 432, 
(g) Dean v. Whittaker, 1 C. & P. 7tli edit. 

347 ; Duffill v. Spottiswoode, 3 C. & (k) Legg v. Evans, 6 M.& W. 36 ; 

P. 435 ; Izod v. Lamb, I C.&lJ. 35. 8 Dowl. 177, S. C. 



256 



SHERIFF S DUTIES IN THE EXECUTION OF A FIERI FACIAS. 



CHAP. X. 
SECT. III. 



Equitable in- 
terest cannot 
be taken. 



Partnership 
properly. 



for a debt, or leased for years, cannot be taken in execution 
against tbe 'pawnor or lessor (/) ; subject, however, to the right 
of the lessee or pawnee, the sheriff may sell the goods so pawned 
or leased {m). Such goods, however, cannot be seized till the 
expiration of the right of the pawnee or lessee, for the pawnor 
or lessor has no present right of possession (ii) ; but if fixtures 
or trees demised with land for a term are severed by the tenant, 
they immediately vest in the lessor, and would be liable to be 
taken on an execution against the lessor (o). Goods distrained or 
taken in execution are not liable to be taken on a subsequent exe- 
cution (p), unless such former execution was a fraudulent one(5'). 

A mere equitable interest in a term of years cannot be taken 
in execution under a writ o^ fieri facias (r), and for that reason, 
on a.fi.fa. against a mortgagor, an equity of redemption cannot 
be taken in execution (s). But if the legal interest be in the 
defendant, the term may be taken : thus, where the defendant 
had agreed to sell the remainder of his terra, it ivas held that 
before any actual assignment the term might be sold by the she- 
riff under the fieri facias (t). 

It seems that an outstanding term vested in a trustee upon 
trust to attend the inheritance, is liable (by stat. 29 Car. 2, c. 3,) 
to be seized under afi.fa. against the cestui que trust, the owner 
of the inheritance (m). 

On a writ o^ fieri facias against one of two partners, the sheriff 
must seize all the joint property, because the moieties are un- 
divided ; for if he seize but a moiety, and sell that, the other 
partner has a right to a moiety of that moiety ; but he must 



(/) Bro. Pledges, pi. 28 ; Execu- 
tion, pi. 107; Dalt. 146; Rogers?). 
Kennay, 15 Law J. (Q. B.) 381. 

(m) See Tidd's Prac. 1042, Blh 
edit. 

(n) See Scott v. Scholey, 8 East, 
476,479. If the lease of goods were 
void, it would be otherwise ; see Smith 
V. Plomer, 15 East, 607. 

(o) See Farrant v. Thompson, 2 
Dowl. 6c Ry. 1 ; 5 B. & A. 826, S. C. 

(p) Bro, Pledges, 28 ; see Cro. 
Car. 149. 

(9) See as to priority of writs, ante, 
p. 247. 

(r) Scott V. Scholey, 8 East, 467 ; 
Metcalf V. Scholey, 2 N. R. 461 ; 
Moore v. Blake, 4 Dow, 230. 



(s) Shirley v. Wright, 3 Atk. 200; 
Burdon v. Kennedy, 3 Atk. 739 ; Lys- 
ter V. Dolland, 3 Bro. Chan. Ca. 480; 
I Ves. jun. 431. 'J'he proper remedy 
for the plaintiff, in that case, is by 
filing a bill in equity to redeem the 
estate, by paying off the principal and 
inteiest due on the morti;age ; but be- 
fore he is entitled to redeem, he must 
first take out a writ of execution against 
the defendant, see 3 Atk. 200; though 
it does not seem to be necessary to 
have it returned, Redesd. Eq. PI. 102, 
3rd edit. 

{t) Sparrow v. Earl of Bristol, 1 
Marsh. 10. 

(m) Doe d. Phillips v. Evans, 1 C. 
& M. 450 ; 3 Tyr. 339, S. C. 



WHAT INTEREST IN GOODS MAY BE TAKEN. 257 



seize the whole, and sell a moiety thereof undivided, and the 
vendee will be tenant in common with the other partner (x). 
The duty of the sheriff is to sell the share of the defendant in 
the partnership property, even though he may not be able to 
ascertain the actual amount of his interest (y). If the execution 
creditor disputes the fact of the partnership, the court will inter- 
fere to protect the sheriff under the Interpleader Act (s). But 
where the goods of two partners are taken in execution against 
one of two partners, on a subsequent execution against the other 
partner, the sheriff must hold the goods as seized ; one moiety 
for the execution against one partner, the other moiety for the 
execution against the other ; for if to the writ against the second 
partner he return nulla bona, it is a false return (a). But in such 
a case he must make an actual seizure of such other moiety, for 
the purpose of satisfying the execution against such second 
partner; for where aji.fa. had issued against one of two part- 
ners, under which partnership property was seized, and after- 
wards aji.fa. was issued against both the partners jointly, which 
was lodged with the same sheriff who had seized under the first 
writ, but the warrant was granted to a different officer, and no 
actual seizure was ever made under the second writ, a fiat in 
bankruptcy issuing afterwards, it was held that the seizure and 
possession under the writ against the single partner, and the 
lodging of the writ against the two partners, did not amount to 
a seizure within the 108th section of the Bankrupt Act, 6 Geo. 4, 
c. 16, and therefore the sheriff was not justified in satisfying the 
second writ out of the proceeds of the goods (h). 

In one case, where the sheriff had sold the whole of the part- 
nership property, on an execution against one partner, the Court 
of King's Bench granted a rule for the master to take an ac- 
count of the partnership property belonging to the other partner, 

(.t) Heydon i;, Heydon, Salk. 392 ; property, which can be sold by the 

Morley v. Strombon, 3 Bos. & Pul. sheriff; see also Johnson v. Evans, 

254; Pope v. Hanan, Comb. 217; supra. 

Holmes v. Mentze, 4 Ad. cSc E. 127; (y) Holmes v. Mentze, 4 Ad. & E. 

Johnson v. Evans, 7 Man. & G. 240 ; 127. 
7 Scott, N.R. 1035, S. C. This rule (z) Ibid. 

applies as well where the shares are (a) Buckhirst v. Clinkard, 1 Show, 

unequal as where they are equal. But 174. 

see Burton U.Green, 3 Car. & P. 306, (/>) Johnson «, Evans, 7 Man. ^ 

from which it seems that there is some G. 240 ; 7 Scolt, N. R. 1035, S. C. 
doubt as to the interest in partnership 



CHAP. X. 
SECT. iir. 



258 sheriff's duties in the execution of a fieri facias. 

CHAP. X. and tliat the sheriff should pay over to the assignees of such 



SECT. III. 



partner the sum found due to them (c). But where the sheriff 
seized, on afi.fa. against one of several partners, his undivided 
share of the partnership effects, the Court of Common Pleas 
refused to refer it to the master to inquire what share the de- 
fendant had in the partnership effects seized {d). And the same 
court, under similar circumstances, on application by the part- 
nership creditors, refused to enlarge the time for the sheriff to 
return the writ until an account might be taken of the several 
claims upon the property (e). So where an execution creditor 
seized partnership property under di Ji. fa. against one of the 
partners, afterwards a joint fiat issued against the firm, and the 
property was then sold "without prejudice" to the rights of the 
execution creditor, and the proceeds received by the assignees 
of the bankrupts ; it was held that, as the interest applicable to 
the execution creditor could only be in the surplus coming to the 
execution debtor, after payment of the partnership debts, and 
must depend on the settlement of accounts, which a court of law 
is not competent to take, the execution creditor could not main- 
tain an action for money had and received against the as- 
signees (/). 
Gooiis in (he On a. fieri facias against an executor for his own debt, the goods 
cutor, admi' of the tcstator in the hands of the defendant cannot be taken in 
TrmufJ' *"^ execution {g). And the law is the same where goods are in the 
hands of a defendant as trustee (Ji) ; unless perhaps whei-e the 
goods have been for a long time possessed by the defendant 
under circumstances inconsistent with the trust (i). But if an 
executrix use the goods of her testator as her own, and after- 
wards marry, and then treat them as the goods of her husband, 
she shall not be allowed to object to their being taken in execu- 
tion for her husband's debt {k), 

(c) Eddie v. Davidson, 2 Doug. S. C. ; see also Feuvvick v. Laycock, 

650. 2 Q. B. 108. 

{d) Chapman v. Keeps, 3 Bos. & (Ji) See Fenwick v. Laycock, 2 Q. 

Pul. 289. B. 108. 

(e) Parker v. Pistor, 3 Bos. & Pul. (i) See Gaskell v. Marshall, 1 Moo. 
288. & Rob. 132 ; 5 C. & P. 31, S. C, 

(f) Garbett V. Veale, 5 Q. B.408; per Lord Tenterden, C. J. ; see also 
1 Dav. & iM. 458, S, C. Fenwick v. Laycock, su-pra, per Lord 

(g) Farr v, Newman, 4T. R. 621; Denman, C. J. 

Whaler t). Booth, 4 Dougl. 36 ; note (k) Quick v. Staines, 1 Bos. & Pul. 

(a) to Farr v. Newman, 4 T. R. 625, 293. 



WHAT INTEREST IN GOODS MAY BE TAKEN. 



259 



Goods vested 
in irastees for 



On Si fieri facias against a husband, it would appear that the 
sheriff may sell a term vested in the husband in right of his 
wife (/). On a fieri facias against a wife on a judgment obtained 
against her before coverture, the goods that she had before thebeneaiof 
marriage cannot be taken, for they vest in the husband by the 
marriage (/«)• And goods bond fide vested in trustees under a 
settlement made before marriage for the benefit of the wife, 
and in the possession of the husband, cannot be taken in execu- 
tion on Sifi.fa. against the husband (n), although there has been 
no inventory of the goods (o), and although they are of a fluc- 
tuating nature (;?). And it seems that a settlement after mar- 
riage would have the same effect, if made for a good and valuable 
consideration, and without fraud ((j') ; or if made in pursuance 
of an agreement entered into before marriage (r). But whether 
goods, vested in trustees for the benefit of the wife by settle- 
ment made either before or after marriage, be or be not liable 
to be taken in execution against the husband, always depends 
upon the fact whether the settlement be bond fide or not : the 
cases of settlements made before marriage are prima facie free 
from fraud (s), but the amount of the consideration, and other 
circumstances in the case, are questions for a jury to say whether 
the settlement be fraudulent ornot(/). If, however, the hus- 
band carry on trade with the goods settled on the wit'e (ti), or 
his possession be inconsistent with the deed, the goods may be 
taken on a fi. fa. against him (x). If a claim be set up by 
trustees of the wife, on an execution against the husband, the 
sheriff should apply to the court under the Interpleader Act(y). 
Wearing apparel, purchased by a wife living with her husband, 
out of money vested in trustees for her sole and separate use 



(0 See 4 T. R. 638. 257; Earl of Shaftesbury v. Russel, 

{m) See Doe d.Taggartt). Butcher, 3 Dovvl. & Ry. 84; 1 Bar. & Cress- 

3 M. & S. 558. 666, S. C. 

(n) Cadogan v. Kennett, Cowp. (r) 1 Eq. Ca. Abr. 148. 

432 ; see also Foley v. Burnell, id. (s) See Cowp. 432 ; 3 T. R. 618. 

435, n. ; Simmons v. Edwards, 16 M. (f) Dewey v. BayntuD, 6 East, 

& W. 838. 257. 

(fl) Jarman v. Woolloton, 3 T, R. (u) See Jarman v. Woolloton, 3 T. 

618. R.618. 

(p) Id. ibid. (x) Derby v. Smith, 8 T. R. 82. 

(?) Nun V. Wilsmore, 8T. R. 521; (y) Post, s. 6. 
see also Dewey v. Bayntun, 6 East, 

s 2 



260 sheriff's duties in the execution of a fieri facias. 

CHAP. X. before marriage, is liable to be taken under a fi. fa- against the 
-fl^-^lii^ husband (y). 
If the goods 'f he sheriff is bound at all events to levy whatever goods the 

in tact are •' " 

no( the pro- defendant has in his county ; and thus he would be, but for the 

perty of ilie . •' 

defendant. protection of the court, often placed in an awkward dilemma ; 
for if he fail to levy goods of the defendant in his bailiwick, he 
is responsible to the plaintiff in an action for a false return ; if, 
on the other hand, he seize goods which belong to a stranger, 
although they apparently are the property of the defendant, he 
is liable to an action of trespass (2). The court however will, 
whenever the property in the goods is disputed, allow the 
sheriff, under the stat. 1 Will. 4, c. 58, to interplead, and obtain 
an issue to try who is the real owner of the goods (a); and there- 
fore the sheriff should not return the writ when there is a dispute 
as to the property. Thus, where the defendant has obtained 
possession of goods by fraud, they cannot be taken in execution 
against him, for he can have no property in goods obtained by 
fraud (b). And where a woman, having assumed the name and 
passed for the wife of B., and permitted him to appear to be the 
owner of the furniture of the house in which they both lived, 
it was held that such furniture could not be taken in execution 
against B. (c). But where the real owner of goods suffered 
them, while in the possession of a debtor, to be seized and sold 
without making any claim to them, it was held that he could not 
afterwards maintain trover for them against a person who pur- 
chased them under the execution with his knowledge and suf- 
ferance {d). Whether the goods belong to the defendant or to 
a stranger, the sheriff should apply to the court for protection, 
whenever there is a reasonable doubt as to the property in the 
goods ; for in Dalton, 140, it is laid down, that if the sheriff 
take the goods of a stranger on Si. fieri facias, and return the levy, 
he is concluded by it. However, it has been decided that a 
sheriff is not in all cases concluded by his return ; for where 

(v) Came v. Brice, 7 M. & W. Dowl. Sx. Ry. 755; 1 Bar. & Cress. 

183"; 8 Dowl. 884, S. C. 514. 

(s) Dalt. Sheriff, 145, 146 ; Gilbert (c) Edwards v. Bridges, 2 Stark. 

on Execution, 21 ; see also Oughton N. P. C. 396 ; Glasspoole v. Young, 

V. Seppings, 1 B. & Adol.241. 9 B. & C. 696 ; 4 Man. & Ry. 553. 

(a) See post, s. 6. (d) Pickard v. Sears, 6 Ad. & E. 

(6) Earl of Bristol v. Wilsmore, 2 469 ; see also Gregg v. Wells, 10 Ad. 

& E. 90, 



SECT. III. 



WHAT INTEREST IN GOODS MAY BE TAKEN. 2G1 

the sherifF returned to ?i fieri facias goods in hands for want of chap 
buyers, and a commission having issued against the defendant, 
on an act of bankruptcy committed before the delivery of the 
writ to the sherifF, it was held, in an action for not selling those 
goods on a venditioni exponas, that the sherifF was not concluded 
by his return, for the defendant had a defeasible title, which had 
in fact been defeated (e). 

Goods sold by the person against whom afi.fa. issues after [[""^^by^e- 
the delivery of the writ to the sherifF, unless in market overt, J,*^^'!;''!^^'"'" 
are liable to be taken and sold by virtue of the execution (/) ; 
for the goods are bound by the delivery of the writ to the she- 
rifF (§■). The property, however, in the goods is not changed 
by the delivery of the writ to the sherifF; and the defendant 
may, notwithstanding, transfer such property, subject however 
to the claims of the execution creditor (A). 

But if the defendant sell his goods bond fide, and for a valu- 
able consideration, before the delivery of the writ to the sherifF, 
they cannot be taken in execution (?) ; and though he sell them 
fraudulently, yet if they be afterwards sold bond fide to another, 
as where a donee lends the donor money to buy goods, and at 
the same time takes a bill of sale of them for securing the money, 
they are not liable to be taken in the hands of a second ven- 
dee (A;). But if the defendant's goods be sold fraudulently, 
before the delivery of the writ to the sherifF, they may be taken 
in execution. A principal badge of fraud is the defendant's 
continuing in possession (/). In the old cases it seems to have 
been considered, that if a man sell goods and continue in pos- 
session as visible owner of them, such sale was void and fraudu- 
lent against creditors (m). But later cases have qualified this 
position ; for although the vendor's continuing in possession is 
generally a badge of fraud, yet it is not necessarily so ; for where 

(e) Brydges v. Walford, 6 M. & (h) Samuel v. Duke, 3 M. & W. 

S. 42 ; see also Porter v. Viner, i 622 ; 6 Dowl. 538, S. C. 

Chitty's Rep. 613, n. (0 Bull. N. P. 258, recog. in 

(/) See Samuel v. Duke, 3 M. & Kidd v. Rawlinson, 2 Bos. & Pul. 60. 

W. 622 ; 6 Dowl. 538, S. C. ; 3 Atk. See also 10 Ves. 145. 

739. A mere agreement by the de- (fc) Godb. 161 ; and see 1 M. & 

fendant to sell his goods will not pre- Sel. 251, quaere, 

vent them from being taken in execu- (/) Twyne's case, 3 Rep. 81. 

lion; Sparrow v. Earl of Bristol, 1 (m) Id. ibid.; Stone o. Grubbam, 

Marsh. 10. 2 Bulstr. 225 ; Edwards v. Harben, 

{g) See a7ite, 246 ; 3 Atk. 739. 2 T. R. 587. 



262 sheriff's duties in the execution of a fieri facias. 

CHAP. X. goods are assigned, and the assignor remains in possession of 

SECT. III. , . ■ t 1 1 1 n ■ 1 

them on terms consistent with the deed oi assignment, the as- 
signment is not considered fraudulent (n) ; as where goods are 
publicly sold, and are afterwards let by the vendee to the vendor 
for a rent, who continues in possession (o), or where the defend- 
ant remains in possession for the purpose of disposing of them 
for the vendee (/)), although the defendant is ostensibly the 
owner, yet they are not liable to be taken on an execution 
against the defendant. In questions of this kind, possession is 
to be much regarded, with a view to ascertain the good faith or 
bad faith of the transaction ; but although the defendant con- 
tinue in possession of goods after a bill of sale executed by 
him, yet if it appear that the vendee actually paid the consider- 
ation for them, and that the sale was notorious in the neighbour- 
hood, as being made under an execution, the question is proper 
for a jury to say upon the whole case whether the transaction 
be bond Jide or not[q). And where A. put B. into possession 
of a public-house, and allowed B. to continue the ostensible 
owner of the goods in the house, it was held that the goods 
could not be taken in execution against B. (r) ; for it has never 
been held that a person may not give the possession of his goods 
to another, without subjecting them to an execution for his debt. 
Thus, where a creditor, having taken goods of a defendant in 
execution upon a judgment confessed on a warrant of attorney, 
bought them by public auction, and took a bill of sale of them 
from the sheriff for a valuable consideration ; after which he let 
the goods to the defendant for a rent which was actually paid ; 
the Court of Common Pleas held that the creditor had a title 
which could not be impeached as fraudulent by other creditors 
having executions against the same defendant (5). And where a 
testator devised goods to trustees, to allow the persons to enjoy 

(ji) Woodham t).Baldock,3Moore, ('p) Jezeph v. Ingram, 1 Moore, 

11 ; Martindale v. Booth, 3 B. & Ad. 189. See Hindle v. Bell, 4 Campb. 

498; Carr v. Buidiss, 1 C. M. & R. 383. 

782; 5 Tyrw. 309, S. C; Minshall (q) Latimer v. Batson, 4 Bar. & 

V. Lloyd, 2 M. & W. 450 ; Reeves v. Cress. 652 ; 7 Dow. & Ry. 108, S. C. 

Capper, 5 Bing.N.C. 136, per Tindal, (r) Dawson v. Wood, 3 Taunt. 

C. J. 250. 

(0) Watkins v. Birch, 4 Taunt. (4) Walkins v. Birch, 4 Taunt. 

823 ; Steward v. Lonab, 1 Brod. & 823. And see the other cases cited in 

Bing. 506. See also Leonard v, note (o). 
Baker, 1 M. & S. 251 ; Kidd v. Raw- 
linson, 2 B. & Pul. 60. 



WHAT INTEREST IN GOODS MAY BE TAKEN. 2G3 

them who should be possessed of a certain mansion-house under chap. x. 

the will, it was held that such goods could not be taken in exe- _^;^J^]j ;_ 

cution against a tenant for life of the inansion-house, who was 
in possession of the goods under the will(i). And where A. 
cohabited with B., assumed his name, and passed for his wife, 
and permitted him to appear to be the owner of the furniture of 
the house in which they lived, it was held that the furniture, 
being her property, was not liable to be taken in an execution 
against B. (u). 

As the sheriff cannot take the goods of a stranger, if the Where the 

r> • 1 1 n ^ (iefVtulant has 

defendant become bankrupt before the seizure, the goods of the become a 
bankrupt cannot be taken on a fi. fa. against him ; for by the 
bankruptcy the property in them vests in the assignees (x). 
And where the sheriff, having seized the goods of a defendant 
on aji.fa. delivered to him before the defendant's bankruptcy, 
afterwards sold goods enough to satisfy that execution and also 
another writ delivered to him after the bankruptcy of the de- 
fendant, it was held that the sheriff was liable to the assignees, 
in an action of trover, for the amount of the goods sold to satisfy 
the second writ (y). If the seizure of the goods and the act of 
bankruptcy happen on the same day, it is open to inquire at 
what time of the day the goods were seized ; for if the goods 
were seized at an earlier period of the day than the act of 
bankruptcy, the execution is good (z). And if the seizure were 
made two months before the issuing of the fiat, it is valid, 
although the act of bankruptcy was before the seizure (a). If 
the sheriff seize and sell the goods before he has notice of an 
act of bankruptcy, he is excused (b) ; and if he sell them after 
notice, but before a fiat sued out, although he may be suable 
in trover (c), or for money had and received, yet he is not liable 
in tirespass, for an officer shall never be a trespasser by rela- 

(t) Earl of Shaftesbury v. Russell, (z) Thomas v. Desanges, 2 Bar. & 

3 Dowl. & Ry, 84 ; 1 Bar. & Cress. Aid. 586 ; Ex parte Uobree, 8 Ves. 

666, S.C. 82; Saddler v. Leigh, 4 Camp. 197 ; 

(it) Edwards v. Bridges, 2 Stark. Woodland u. Fuller, 1 1 Ad. & E. 859. 

N. P. C. 396 ; Glasspoole v. Young, (a) 6 Geo. 4, c. 16, s. 81. 

9 B, & C. 696 ; 4 Man. & R. 553, (/<) Cooper v. ChiUy, 1 Bla. Rep. 

S. C. 65; 1 Burr. 20, S.C. 

(j) Smalcomb v. Cross, 1 Lord (r) Id. ibid. And it lies upon the 

Raym. 252 ; Phillips V.Thomson, 3 sheriff' to show that he paid over the 

Lev. 69, 191. money to the execution creditor be- 

(y) Stead v. Gascoigne, 8 Taunt, fore notice of the act of bankruptcy; 

527. Lee v. Lopes, 15 East, 230. 



264 sheriff's duties in the execution of a fieri facias. 



SI.CT. III. 



CHAP. X. tion (d). If the writ be executed on goods which the bankrupt 
has acquired since the bankruptcy, the execution will be good, 
if the bankrupt's certificate be not then signed and allowed (e). 
Yet if the certificate be allowed at any time before the goods are 
sold, the court will order them to be restored on motion (/). 

The 2 & 3 Vict. c. 29, s. 1, enacts, " that all contracts, deal- 
ings and transactions by and with any bankrupt really and bond 
Jide made and entered into before the date and issuing of the 
fiat against him, and all executions and attachments against the 
lands and tenements or goods and chattels of such bankrupt, 
bona Jide executed or levied before the date and issuing of the 
fiat, shall be deemed to be valid, notwithstanding any prior act 
of bankruptcy by such bankrupt committed ; provided the per- 
son or persons so dealing with such bankrupt, or at whose suit 
or on whose account such execution or attachment shall have 
issued, had not at the time of such contract, dealing or transac- 
tion, or at the time of executing or levying such execution or 
attachment, notice of any prior act of bankruptcy by him com- 
mitted ; provided also, that nothing herein contained shall be 
deemed or taken to give validity to any payment made by any 
bankrupt, being a fraudulent preference of any creditor or cre- 
ditors of such bankrupt, or to any execution founded on a judg- 
ment on a warrant of attorney or cognovit given by any bank- 
rupt by way of such fraudulent preference." 

If a writ of ^. fa. is lodged with the sheriff after the defend- 
ant has been declared a bankrupt and assignees appointed, the 
sheriff should return nidla bona (g) ; and this return will not 
be vitiated by the fiat being afterwards, and after the return, 
annulled (/<). The words " executed and levied," in the 2 & 3 
Vict. c. 29, are satisfied by a seizure under the writ ; all execu- 
tions, therefore (except such as are hereafter particularly men- 
tioned, being such as are founded on judgments entered up on 
warrants of attorney, or on cognovits executed before decla- 
ration, and judgments by default, confession, or nil dicit, in 
actions commenced not adversely, or by collusion, or for the 

(d) Smith V. Miller, 1 T. R. 475. Eames, 4 Moore, 350 ; 2 Brod. & 

(^e) CuUeriD.Mey rick, 1 T.R, 361; Bing. 8, S. C. See also Davis d. 

Neateley v. Engleton, 2 Tidd's Prac. Shapley, 1 B. & Ad. 54. 

1049, 8lh edit. (g) See Smallcombe v. Olivier, 13 

(/) Lister v. Mundell, 1 Bos. & M. & W. 77 ; 2 Dowl.& L. 217. 

Pul. 427. See also Dimsdale v. (h) Ibid. 



WHAT INTEREST IN GOODS MAY BE TAKEN. 265 



SECT. III. 



purpose of fraudulent preference), are rendered valid by the chap. x. 
statute, notwithstanding a prior act of bankruptcy, provided 
that there has been a seizure under the writ before the date and 
issuing of the fiat, and provided also that the execution creditor 
had not, at the time of such seizure, notice of such prior act of 
bankruptcy (i). 

The notice of a prior act of bankruptcy, required by the sta- 
tute to invalidate an execution bo7id jide executed and levied 
before the date and issuing of the fiat, must be given to the 
person at whose suit the execution has issued, i. e. to the creditor 
himself; and the execution would not be invalidated by notice 
to the sheriff or his bailiff only (A:). But notice to the attorney 
of the execution creditor, given before the issuing of the fi.fa., 
has been held to be notice to the creditor himself (^). No par- 
ticular form of notice is necessary ; and it seems that it would 
be sufficient to give notice generally that an act of bankruptcy 
has been committed, without stating the nature of the act (m). 
If the notice contain information of an act done, which may or 
may not turn out to be an act of bankruptcy, according to cir- 
cumstances, it is sufficient (w). Notice of a docket having been 
struck has been held not to be notice of an act of bank- 
ruptcy (o). The time of delivering out the fiat as an operative 
instrument is the " date and issuing" within the meaning of the 
statute ; and pnw/d facie the delivery of it out of the bankrupt 
office is the time from which it becomes an operative instru- 
ment (^). It is not necessary, in order to render an execution 
valid by virtue of this statute, that there should be bona fides on 
the part of the debtor; for it has been held that the words 
" bond fide" in the statute have reference only to the bona fides 
of the creditor who caused the execution to issue, and of the 
sheriff, who is his minister {q). 

The Stat. 2 & 3 Vict. c. 29, does not, however, protect trans- 
actions which are of themselves acts of bankruptcy, and conse- 

(0 See Giles v. Grover, 9 Bing. («) Rothwell v. Tirabrell, 1 Dowl. 

267 ; Cheston v. Gibbs, 12 M. & W« N. S. 778. 

lH- (o) Hocking D. Acraman, 1 Dowl. 

(k) Ramsey v. Eaton, 10 M. & W. & L. 434 ; 12 M. & W. 170, S. C. 

22. (p) Pewtress v. Annan, 9 Dowl. 

(/) Rothwell v. Tirabrell, 1 Dowl. 828. 

N. S. 778. (,) Belcher v. Magnay, 12 M. & 

(m) See Ramsey v. Eaton, 10 M. W. 102. 
& W. 27, per Parke, B. 



266 sheriff's duties in the execution of a fieri facias. 

CHAP. X. qiiently invalid ; and tlierefore, where the seizui'e under the 
SECT. III. execution is itself an act of bankruptcy, by reason of its having 
been procured by the trader himself, in order to defeat or delay 
his creditors, the statute will not protect it, although it may 
have been bond Jide levied so far as regards the execution cre- 
ditor and the sheriff (?•). But in order to complete the assignee's 
right of action under such circumstances, it is necessary that 
there should be a conversion, e. g. by sale of the goods seized 
after the accrual of their title, that is, after the act of bank- 
ruptcy (s). Therefore, in an action of trover at the suit of 
assignees, to a plea framed under the stat. 2 & 3 Vict. c. 29, 
showing an execution bond fide executed before the date and 
issuing of the fiat, and alleging the conversion to be by seizure 
of the goods under the fi. fa., it may be replied that the debtor 
procured the fi. fa. to be issued with intent to delay his cre- 
ditors, and thereby then committed an act of bankruptcy, and 
new assigning that afterwards, and after the seizure of the said 
goods, the defendant converted them modo etformd, which is the 
conversion in the declaration mentioned. And such a replica- 
tion will not be open to the objection that it is an argumenta- 
tive traverse that the execution was bond fide executed ; and it 
is not necessary in the new assignment to point out in what the 
conversion new assigned consists {t) . Neither does the 2 & 3 Vict, 
c. 29, protect executions founded on judgments entered up on 
warrants of attorney, unless such executions are perfected both 
by seizure and sale before the date and issuing of the fiat, for 
the 2 & 3 Vict. c. 29, does not operate as a repeal of the 108th 
section of the 6 Geo. 4, c. 16 (?<). It is not, however, essential 
to the validity of an execution founded on a judgment entered 
up on a warrant of attorney, that the proceeds of the sale should 
be paid over to the creditor before the issuing of the fiat ; it is 
sufficient if the sale has taken place before that time, because 
immediately on the sale of the goods levied the judgment cre- 
ditor ceases to be a creditor of the bankrupt within the mean- 

(r) Hall V. Wallace, 7 M. & W. (w) Whitmore v. Robertson, 8 M. 

353; Belcher v. Magnay, 12 M. & & W. 463 ; Skey t;. Carter, 11 M. & 

W. 102. VV. 571 ; 2 Dowl. N. S. 831, S. C. ; 

(s) Ihid, see also Rawdon j;. Wentworth, 10 

(t) Belcher v. Magnay, 12 M. & M. & VV. 36; Godson v. Sanctuary, 

W. 102. 4 B. & Ad. 262. 



WHAT INTEREST IN GOODS MAY BE TAKEN. 267 



SECT. III. 



ing of the 6 Geo. 4, c. 16, s. 108 (x). If an execution founded chap. 
on a judgment on a warrant of attorney is completed by seizure 
and sale prior to the issuing of the fiat, it is protected by the 
statute, although the creditor had notice of the act of bank- 
ruptcy before the sale (?/). To a plea to an action of trover 
at the suit of assignees framed on this statute, justifying a con- 
version by seizure under a Ji. fa. against the bankrupt, and 
alleging that the defendants executed and levied their execution 
against the goods before the fiat, it may be replied that the 
judgment on which the writ has issued was entered up on a 
warrant of attorney, and that after the fat the defendants sold 
the goods, which is the conversion complained of, and such a 
replication will not amount to an argumentative traverse that 
the execution was executed and levied before the fiat, but will 
be good by way of confession and avoidance, as admitting that 
the execution was executed and levied (for it has been shown 
that those words are satisfied by a seizure alone under the writ) 
before the fiat, and avoiding the effect of such execution and 
levy, by showing circumstances to bring it within the 108th 
section of the 6 Geo. 4, c. 16 (2). 

An execution founded on a judgment entered up on a cog- 
novit, executed before declaration filed or delivered, or on a 
judgment by default, confession, or nil dicit, in an action com- 
menced not adversely or by collusion, or for the purpose of 
fraudulent preference, requires also to be perfected by seizure 
and sale before fiat, precisely in the same way as executions 
founded on judgments on warrants of attorney ; the 108th sec- 
tion of 6 Geo. 4, c. 16, applying in terms to all judgments 
by default, confession, or nil dicit, and the 1 Will. 4, c. 7, s. 7, 
having only excepted from the operation of that section judg- 
ments on cognovits signed after declaration filed or delivered, 
and judgments by default, confession, or nil dicit, according to 
the practice of the court, in actions commenced adversely, and 
not by collusion, or for the purpose of fraudulent preference. 

In the case of an execution against an insolvent debtor, issued insolvency of 
on a judgment founded on a warrant of attorney or cognovit, 

(x) Ramsey v. Eaton, 10 M. & W. W. 104 ; 2 Dowl. & L. 174. 

22; Morland v. Pellatt, 8 B. & C. (s) Cheston v. Gibbs, 12M.& W. 

722. 111. 

(3/) VVhitmore v. Greene, 13 M. & 



2G8 sheriff's duties in the execution of a fieri facias, 

CHAP. X. the Stat. 1 & 2 Vict. c. 110, s. 61, enacts, "that in all cases 
, ^^^'' '"' where any prisoner whose estate shall have been vested in the 
said provisional assignee under this act shall have executed any 
warrant of attorney to confess judgment, or shall have given 
any cognovit actionem, or bill of sale, whether for a valuable 
consideration or otherwise, no person shall, after the commence- 
ment of the imprisonment of such prisoner, avail himself or 
herself of any execution issued or to be issued upon any judg- 
ment obtained or to be obtained upon such warrant of attorney 
or cognovit actionem, or of such bill of sale, either by seizure 
and sale of the property of such prisoner, or any part thereof, 
or by sale of such property theretofore seized, or any part 
thereof, but that any person or persons to whom any sum or 
sums of money shall be due in respect of any such warrant of 
attorney or cognovit actionem, or of such bill of sale, shall and 
may be a creditor or creditors for the same under this act." 

The old Insolvent Act (7 Geo. 4, c. 57) contained a clause 
(s. 34) in almost the same words, and under that act it was 
held, that a sheriff who had seized the goods of an insolvent 
debtor under a Ji. fa. issued upon a judgment founded on a 
cognovit, and who sold after notice of the assignment to the 
provisional assignee, was liable for so selling to an action of 
trover at the suit of the assignees (a), even though the goods 
were seized by the sheriff under the writ before the commence- 
ment of the insolvent's imprisonment (6). But the execution 
creditor is entitled to the amount of all monies actually realized 
by sale of goods seized under aji.fa. before the commencement 
of the insolvent's imprisonment, although at that lime other 
part of the goods may remain unsold in the sheriff's hands (c). 



Section IV. 

Fieri Facias. — Goods seized, when and how to he sold. 

Goods when It seems that if the sheriff seize the goods of the defendant on 

be sold. premises belonging to the defendant or a stranger, he is allowed 

to remain on the premises a reasonable time in order to remove 

(o) Groves I/. Cowhara, 10 Bing. 5. (c) Squire u. Huetson, 1 Q.B. 308. 

(6) Kelcey v. Minter, 1 Bing. N. C.721. 



GOODS SEIZED, WHEN AND HOW TO BE SOLD. 269 

the goods. After the sheriff has seized the goods, it is his duty chap. x. 



to remove them to a place of safe custody until they can be sold, 
for if they be rescued the sheriff is liable to the plaintiff for 
their value (d) ; and it is said, if the sheriff take cattle, and re- 
turn that he has taken cattle to the value of 100/,, and after- 
wards the cattle die for want of meat, the sheriff is answerable 
for the value returned (e). The court will not interfere to re- 
strain a sheriff from selling goods seized under a fi,fa. on an 
offer of indemnity from a claimant of them (/). In selling the 
goods, the sheriff or his officer is not obliged to sell them by 
public auction, but the expense of any other mode of sale will 
fall upon himself (>o-). In the case of a lease for years taken by 
the sheriff on 2iji.fa., the sheriff should assign it by deed, under 
the seal of office, without specifying the particular time that the 
lease has then to run {h). Although goods are put up to sale 
by public auction, yet if they are sold for much below their real 
value, the sheriff is liable to an action ; for in such case he 
should return that he has goods which remain in hands for want 
of buyers, and wait for a venditioni exponas («). But where a 
broker sold a lease, taken on Siji.fa., for a sum much below its 
value, vujiich sale the sheriff refused to complete, and returned 
that the goods remained in his hands for want of buyers, it was 
ruled at Nisi Prius that the sheriff was liable in an action for a 
false return {j). The sheriff may sell the goods after the return 
of the writ, even after he is out of office, without a venditioni 
exponas (k). The sale or assignment by the sheriff of goods or 
chattels of the defendant taken on a Ji.fa., conveys an inde- 
feasible title to the vendee ; so much so, that if the writ be 
afterwards vacated, the defendant shall not be restored to his 
goods (/). But if the writ were void, as issuing from a court 

(rf) Sly V. Finch, Cro, Jac. 514. (;) Barnaid v. Leigh, 1 Stark. 43. 

(e) Ibid. 515; 2 Lord Raym. (A:) Doe d. Stevens v. Donston, 

1075. 1 Bar. & Aid. 230; Ayre v. Aden. 

(/) Harrison v. Foster, 4 Dowl. Cro. Jac. 73; 1 Roll. Abr, 893, 894; 

558. per Holt, C. J., 6 Mod. 295 ; Jeans v. 

(g) Phillips V. Viscount Canter- Wilkins, 1 Ves. 195; sed vide Yelv. 

bury, 11 M. & W. 619 ; 1 Dowl. & 44; 1 Lutw. 589. If the sheriff seize 

L. 283, S. C. goods, and a supersedeas be afterwards 

(h) Ante, 252 ; Taylor v. Cole, 3 deliveied lo him, a vendilioni eiponas 

T. R. 294; Palmer's case, 4 Rep. 74; may still issue to him to sell them; 

Cro. Ehz. 584, S. C. ; and see form of Cro. Eliz. 597. 

a deed of assignment by the sheriff of (/) Doe v. Thorn, 1 M. & S, 425; 

goods seized by him on & Ji.fa., post, Doe d. Batten v. Murless, 6 M. & S. 

Append. 110; Dyer, 363, pi. 24 ; 5 Rep. 90 b. 

(i) Keighlley r. Birch, 3 Camp. 520. 



StCT. IV. 



270 SHERIFV's DUTIES IN THE EXECUTION OF A FIERI FACIAS. 

CHAP. X. not having jurisdiction, or if the goods were the goods of a 

— '— stranger and not of the defendant, of course the sale by the 

sheriff would convey no property (m). But the sheriff cannot 
retain the goods to his own use, on satisfying the plaintiff out of 
his own money (??) ; so neither can he deliver them to the plain- 
tiffin satisfaction of his debt (o). But they may be sold to the 
plaintiff, though they cannot be delivered to him without a 
sale (p). 
Venditioni I" Order to compcl a sale of the goods, where the same she- 

ejponaa. riff Continues in office, it is usual to issue a writ of venditioni 
exponas. This writ is not a process distinct from the Ji. fa., but 
is a part of it, and therefore a judge has power to order the 
sheriff to return it in vacation, under 2 Will. 4, c. 39, s. 15 (q). 
This writ should be sued out without delay ; for if, after the sheriff 
makes his return to aji.fa., the plaintiff lies by without proceed- 
ing against the sheriff, and the goods should in the mean time be 
taken on an extent, or the defendant become bankrupt, and the 
sheriff deliver them to the assignees, the court will quash a writ 
of distringas obtained against the sheriff (r). After the delivery 
of the venditioni exponas to the sheriff, it is his duty to sell the 
goods at all events for the best price that can be got for them (s). 
But the Court of Common Pleas refused in one case to grant an 
attachment against the sheriff for returning to a venditioni ex- 
ponas that the goods remained in hands for want of buyers {t). 
The proper mode of proceeding, if the sheriff do not sell on or 
before the return of the venditioni exponas, is to sue out a dis- 
tringas against him, directed to the coroner, and if he do not sell 
the goods, and pay over the money before the return of that writ, 
he shall forfeit issues to the amount of the debt (m). 

(m) See Farrant v. Thompson, 2 (r) Ruston v. Hatfield, 3 Bar. & 

Dowl. & R. 1 ; see also Lock v. Sel- Aid. 204; Clutterbuck v. Jones, 15 

wood, 1 Q. B. 736. East, 78. And if the act of bank- 

(?i) Noy, 107; Langdon r. Wallls, ruptcy was prior to the seizure on the 

1 Lutw. 589. ^e/j/acias, the sheriff is not concluded 

(o) Bealey v. Sampson, 2 Vent by his return of goods in hands for 

93 ; Thomson v. Clerk, Cro. Eliz. want of buyers ; Brydges v. Walford, 

504. 6 M. & Sel. 42. 

(p) See Leader v. Danvers, 1 Bos. (s) See Keightley i;. Birch, 3 Camp. 

& Pul. 360; Petit i;. Benson, Comb. 524 ; Cowp. 405. 

452 ; Stratford v. Twynam, Jacob, (t) Leader v, Danvers, 1 Bos. & 

418. Pul. 359. 

{<l) Hughes V. Rees, 4 M. & W. («) Clerk i-. Withers, 6 Mod. 300 ; 

468; 7 Dowl. 56, S. C; Reg. v. see also Chit. Arch. 437, 7ih edit. 

Sheriff of Berks, 8 Dowl. 97. Where the sheriff has returned to a^. 



GOODS SEIZED, WHEN AND HOW TO BE SOLD. 271 



But where four writs offi.fa. at the suit of different plaintiffs chap. x. 

against the same defendant were successively delivered to the '- — - 

sheriff", to the last of which he returned that he had seized goods, 
value unknown, which remained in his hands for want of 
buyers, upon which a venditioni exponas issued, the court stayed 
an attachment for not returning the venditioni exponas, on the 
sheriff"s paying over the balance in his hands, after satisfying 
the former writs (x). 

If the sheriff" neglects to sell for an unreasonable time, and the 
plaintiff" thereby sustains any damage, an action on the case may 
be supported against him for his breach of duty (?/). In making 
sale of goods under a venditioni exponas^ the sheriff" is not bound 
by the value set upon the goods in the return to the Ji. fa. (z). 
The sheriff" ought to stop the sale of the goods as soon as a suffi- 
cient sum has been raised to cover the amount of the levy, ex- 
penses, &c. (a) ; and after selling enough in fact for that pur- 
pose, he is not justified in selling more, on the supposition that 
by accident, for which he is not answerable, the amount levied 
may become insufficient (b). 

If the sheriff" return that he has seized goods on a Ji.fa., Distringas 
which remain unsold for want of buyers, and go out of office, comitem. 
the plaintiff" may sue out a distringas nuper vicecomitem, by which 
writ the new sheriff" is commanded to distrain the old sheriff" to 
sell the goods, and have the money in court at the return (c). 
The sheriff"'s authority to sell the goods, we have seen, is not 
derived from the distringas, for the sheriff", who has seized 
goods, may sell them after he is out of office ; but this writ is 
compulsory upon him (d). If there has been laches on the part 

/a. that he has levied, he cannot to the Gill, 11 M, & W. 315 ; 1 Dowl. & 

venditioni exponas return that he has L. 693, S. C. 

sold the goods, but detains the naoney (a) See Cook v. Palmer, 6 B. & C. 

for another party, who is a plaintiff 739; Bayley, J., Batchelor v. Vyse, 

under a prior writ ; Rowe v. I'app, 9 4 M. & So. 552. 

■Price, 317. (6) Aldred v. Constable, 6 Q. B. 

(x) Reg. V. Sheriff of Herts. 9 370. 

Dowl. 916. (c) See the form of the writ, 2 

(i/) Jacobs V.Humphrey, 2 C.& M. Saund. 47 q, note. The old form of 

413 ; Bates v. Wingfield, 2 N. & M. writ was, that the new sheriff should 

831 ; 4 Q. B. 580. n. (u), S. C. have the money in court ; see 6 Mod. 

(2) Chatter v. Peter, Cio. Eliz. 299. 

598; Sly v. Finch. Cio. Jac. 515; (d) Clerk v. Withers, 6 Mod. 299 ; 

Godb. 276 ; Wintle v. Lord Chet- 1 Salk. 323 ; 2 Lord Raym. 1074, 

wynd, 7 Dowl. 654; Chambers v. 1075, S.C; 2 Saund. 47 q. 
Coleman, 9 Uowl. 588 ; Barton v. 



272 sheriff's duties in the execution of a fieri facias. 

CHAP. X. of the plaintiflT, or collusion between him and the officer, the 
^sECT. IV. (,Q^,y(. ^jji j^Qj grant the distringas (e). And if a fiat in bank- 
ruptcy issue against the defendant, on an act of bankruptcy 
committed before the seizure of his goods under a. Ji.fa., the 
court will not grant a distringas after a return of goods in his 
hands unsold, for in such case the sheriff" is not concluded by 
his return as to the property in the goods being in the defend- 
ant (f). Where, to the distringas, the new sheriff returned 
that he had distrained issues to the value of 40*., and in conse- 
quence of the delay further costs had been incurred, the court 
increased the issues to the amount of 100^. to meet the costs 
incurred (g). 
Payment of The sheriff, on a Jieri facias, may release the goods, or omit to 
costs, or bond levy them, on payment of the debt and costs to himself, for the 
rity toihe sheriff is ordered to levy the debt; and his duty on aji.fa. in 
good. ' * this respect differs from his duty on a ca. sa. (h), for on the 
former writ payment to the sheriff is a bar to any future exe- 
cution. Indeed, it has been said that if the sheriff seize the 
goods after a tender of the debt and costs, he is a trespasser («). 
And the sheriff may, if he please, take a bond conditioned to 
pay the money into court on the return of the^. fa. (k), or to 
save him harmless against a false return to aji.fa. (^), such 
bonds not being void under the stat. 23 Hen. 6, c. 9, that 
statute extending only to bonds given by or for prisoners in 
custody on mesne process (m). But the sheriff, for releasing the 
defendant's goods on taking a bond, would be liable to the 
plaintiff in an action for a false return, and must seek his remedy 
over upon the bond. 
SheriflF's pro- When the sheriff has duly seized goods under a writ oi fieri 
goods seized, facuis, he has such a special property in them as to enable him 

Actions by , • , • , ^ ■ ^ i . i 

him for in- to maintain trespass or trover against any person who may take 
jury 1 ereto. ^j^gj^ q^j. ^f ]^jg possession (?j), for he is answerable to the plain- 
tiff to the value of the goods ; but he acquires no general pro- 

(e) Ruston v. Hatfield, 3 Bar. & (i) Per Twysden, J., in Lefans u. 

Aid, 204 ; 1 Chitty's Hep. 613. S. C. Moregreeti, 1 Keb. 655. 

(/) Clutterbuck D. Jones, 15 East, (/c) Beawfage's case, 10 Rep. 99 b. 

78 ; Brydges v. Walford, 6 M. & S. (/) Knipe v. Hobart, I Lutw. 596. 

42. {m) See Rogers v. Reeves, 1 T. R. 

ig) Phillips V. Morgan, 4 Bar. & 421 ; 1 Saund. 161. 

Aid. 652 ; Nowell v. Underwood, 5 (n) Wilbraham v. Snow, 2 Saund. 

Dowl. 229. 47 ; 1 Vent. 52, S. C. ; 1 Lev. 282 ; 

Qi) Taylor v. Bekon, or Baker, 2 1 Sid. 438; S. P. Clerk v. Withers, 

Lev. 203 ; T. Jones, 97, S. C. 6 Mod. 292. 



GOODS SEIZKD, WHEN AND HOW TO BE SOLD. 27.1 



perty in them (o). Where a fi.fa. was delivered to the sheriff, chap. x. 

and, before it was executed, the attorney of another creditor ob- '. — '- 

tained a warrant from the sheriff, and sold the goods on a second 
fi.fa., it was held that the sheriff, who returned a levy on the 
first writ, might recover the amount of the levy from the attor- 
ney in an action for money had and received ; for the clerk of 
the attorney must be considered the agent of the sheriff in 
making the levy, the proceeds of which were liable to satisfy the 
writ first delivered (p). But the sheriff, in order to maintain 
any action against a person for taking goods seized by him on a 
fi.fa., must continue in actual possession of them ; for where a 
sheriff's officer seized a table in the name of all the goods in 
a house, and locked up his warrant in the table-drawer, and left 
the house, it was held that the sheriff could not maintain an 
action against the landlord who afterwards distrained them for 
rent (^q). And where the sheriff seizes goods in the possession 
of the defendant, which he obtained by fraud, the sheriff cannot 
maintain an action against the real owner for rescuing them out 
of his custody (r). 

The defendant is discharged from the iudgment and all fur- Defemiant 

h H' 

ther execution, if the sheriff has taken goods to the amount of charged by a 
the debt, although he does not satisfy the plaintiff (s) ; or if the ''^*" 
sheriff has levied goods to the amount of part of the debt, no 
further execution can issue until the writ is returned (<); but 
one obligor cannot plead that the goods of his co-obligor were 
seized under a. fi.fa., for it is no actual satisfaction of the debt ; 
the plea is confined to the party whose goods are taken (ii). 

If, after goods are seized and sold under a writ of fieri facias. Restitution, 

1-1 n • 1 1 ^ovi made. 

the judgment be afterwards reversed or set aside, the party 
against whom the execution was sued out shall have restitution 
of the money levied, that is, of the money properly levied by 

(o) Doe d. Hughes v. Jones, 9 M. Cro. Jac. 514, S. C. ; Taylor v. Baker, 

& W 372; Playfair j;. Musgiove, 14 2 Mod. 214; Clerk v. Withers, 6 

Rl. & W. 239. Mod. 292, 299 ; 1 Salk. 323, S, C. 

(p) Sawle I). Paynter, 1 Dowl. & (t) Miller ?;. Parnell, 2 Marsh. 78; 

Ry. 307. 6 Taunt. 370, S. C. ; Chapman v. 

(q) Bladesv. Arundale,! M.&Sel. Boulby, 8 M. & W. 249; 1 Dowl. 

71 1. N. S. 83, S. C. ; Thomas v. Newnam, 

(r) Earl of Bristol v. Wilsmore, 2 Dowl. N. S. 34. 
2 Dowl. & Ry. 755 ; 1 B. & C. 514, (w) Dyke v. Mercer, 2 Show. 394 j 

S. C. 2 Lord Raym. 1072, Gould, J. 

(s) Slie V. Finch, 2 Roll. Rep. 57 ; 



274 sheriff's duties in the execution of a fieri facias. 

CHAP. X. the officer (x), but not of the goods themselves. Thus, if a 
SECT. IV. tgrm be sold under a Ji. fa., and the judgment be reversed, it is 
only the money for which it was sold, and not the term itself, 
which shall be restored (?/). But if the judgment be reversed 
before a term or goods be sold, the term or goods of course 
must be restored to the party (2), Where the judgment is set 
aside for irregularity, &c., restitution (when necessary) forms 
part of the rule ; and if the goods or money be not restored, the 
court will of course grant an attachment (c). 



Section V. 
Fieri Facias, — Landlord's Claim for Rent. 
Landlord's Where the sheriff has seized goods under a writ of fieri 

claim for . i-i i- ■ -, n -r i 

rent. factas, they are not liable to be distrained for rent. In order to 

give a preference to the landlord over all other creditors, it was 
enacted by stat. 8 Anne, c. 14, s. 1, *' that no goods upon any 
tenements leased for life or lives, term of years, at will or other- 
wise, shall be liable to be taken by virtue of any execution, on 
any pretence whatever, unless the party at whose suit the exe- 
cution is sued out shall, before the removal of such goods from 
off the said premises by virtue of such execution, pay to the 
landlord of such premises, or his bailiff, all such sums of money 
as are or shall be due for rent of the premises at the time of 
taking such goods by virtue of such execution, provided the 
arrears do not amount to more than one year's rent ; and in case 
the arrears shall exceed one year's rent, then the party at whose 
suit, &c., paying the landlord or his bailiff one year's rent, may 

(.r) Whalley v. Barnett, 2 Dowl. shall have restitution without a scire 

33. facias, because it appears on the record 

(v) Doe«. Thorn, 1 M.& Sel.425; that the money had been paid, and 

Roll. Abr. Error (1)1; Cro. Eliz. there is a certainly what has been lost; 

278 ; 5 Rep. 90 b; Dyer, 363, pi. 24. but if the money have not been paid 

(2) See 2 Roll. Abr. 491, 1. 4. If over, a. scire facias (juare restitutionem 

the judgment be reversed on a wiit of iion, suggesting the matter of fact, viz. 

error, the plaintiff in error shall have the sum levied, ike, must first pre- 

a writ of restitution, in order that he viously issue ; see Chit. Archb. 418, 

may be restored to all he has lost by 7th edit. ; 2 Tidd's Prac. 8tli edit. 

the judgment. If execution on the (a) Anon. 2 Salk. 588; and see 

judgment have been executed, and the Chit. Archb. Prac. 418, 7th edit. ; 2 

money paid over, the plaintifTin error Tidd's Prac. 8th edit. 



LANDLORDS CLAIM FOR RENT. 



21(5 



SECT. 



proceed to execute his judgment ; and the sheriff is required to chap 
levy and pay to the plaintiff as well the money paid for rent as _ 
the execution money." And by s. 8, it is " provided that no- 
thing in that act contained shall extend to hinder her majesty, 
her heirs, &c., but that it shall! and may be lawful for her ma- 
jesty, her heirs, &c., to levy, recover, and seize such debts, 
fines, penalties, and forfeitures, in the same manner as if that 
act had never been made." 

The 7 & 8 Vict. c. 96, s. G7, enacts, " that no landlord of any 
tenement let at a weekly rent shall have any claim or lien upon 
any goods taken in execution under the process of any court of 
law for more than four weeks' arrears of rent; and if such 
tenement shall be let for any other term less than a year, the 
landlord shall not have any claim or lien on such goods for more 
than the arrears of rent accruing during four such terms or 
times of payment («)." 

The statute of 8 Anne applies to any goods upon the pre- 
mises, to whomsoever those goods belong (6). The landlord, 
under this act, is only entitled, in preference to an execution, to 
rent due at the time of taking the goods, and not to rent which 
accrues due during the time that the sheriff is in possession (c). 
To entitle the landlord to a year's rent under the statute, the 
premises must be held by the tenant at a rent certain ; and 
therefore where the tenant entered into possession in January, 
1829, under an agreement made in October, 1828, whereby a 
lease was to be granted to him from the 20th November, 1828, 
but no lease was granted, and the tenant continued to occupy 
until the time of the execution in February, 1842, but it was 
not shown that any payment of rent had been made ; it was 
held that it did not sufficiently appear that the tenant occupied 
as tenant at a rent certain to entitle the landlord to a year's rent 
before the removal of the goods ((/). But where, in an agree- 
ment for the sale of certain premises, there was a stipulation 
that " in the meantime, and until the assignment was made, the 
purchaser should pay and allow to the vendor at the rate of 

(a) See also, as to the right of the (6) Foster v. Cookson, 1 Q. B. 419. 

landlord in the case of executions out (c) Hoskinst). Knight, 1 M. & Sel. 

of the county courts established by 9 245. 

& 10 Vict. c. 95, the 107th section (d) Riseley i'. Ryle, 11 M. & W. 

of that act. 16. 

T 2 



276 sheriff's duties in the execution of a fieri facias. 

CHAP. X. 100/. per annum from tlie time of taking possession of the pre- 
^^^^' ^' mises until the completion of the purchase, in equal half-yearly 
payments," the purchaser having taken possession, and one half- 
yearly payment being due, it was held that it was due as renty 
and that the vendor was entitled to it under the statute of Anne 
before the removal of any of the goods which had been seized 
under an execution after it became due (e). The sheriff must 
pay the landlord his rent under this statute, if he has notice of 
tiie rent being due at any time whilst the goods or the proceeds 
are in his hands, although after the removal of them from the 
premises (/). If the landlord have a year's rent paid to him 
on one execution, and more rent remains due, he shall not be 
entitled to receive another year's rent on a subsequent execu- 
tion (g). A ground landlord is not a landlord entitled to a 
year's rent within this statute (A) ; but the statute applies to a 
case of lessee and undertenant, and to goods in an apartment, 
part of a messuage (<) ; and it was held that the trustees of an 
outstanding term, assigned to attend the inheritance, might sue 
the sheriff for not paying over a year's rent in levying goods on 
aji.fa. under this statute (A:). Where the goods on a farm and 
premises were seized on aji.fa. against the tenant, and a habere 
facias possessionem in an ejectment at the suit of the landlord, 
on a demise prior to the issuing of the fi. fa., was afterwards, 
and before any sale under the fi. fa., delivered to the sheriff; it 
was holden that the landlord was not entitled to a year's rent, 
for the tenant was a trespasser from the day laid in the declara- 
tion in ejectment, and consequently the defendant was not a 
tenant within the meaning of the statute at the time the sheriff 
seized the goods on the premises {I). 

The statute does not apply where the landlord himself is the 
execution creditor (m) ; and therefore where the landlord, having 
seized his tenant's goods under an execution, was afterwards 
compelled to refund to the assignees of the tenant, who had 
become an insolvent, it was held that he could not as against 
them retain a year's rent(n). This statute applies to all manner 

(e) Saunders v. Musgrave, 6 B. & 428 ; 5 M. & P. 270, S. C. 

C. 524. (/c) CoUyer v. Speer, 2 Brod. & 

(/) Arnitt v. Garnett, 3 Bar. & Bing. 67. 

Aid. 440; Andrews v. Dixon, 3 Bar. (I) Hodgson v. Gascoigne, 5 Bar. 

bL Aid. 645. & Aid. 88 ; Riseley v. Ryle, 10 M. & 

{g) Dodd V. Saxby, Stra. 1024. W. 101. 

(h) Bennett's case, Stra. 787. Cm) Taylor v, Lanyon, 6 Bing. 536. 

(^i) Thurgood i;. Richardson, 7 Bing. (71) Ihxd. 



landlord's claim for rent. 277 

of executions for the subject, upon judgments for the defendant chai'. x. 
as well as for the plaintift'(o). If the sheriff' take goods on a _^]^^J2jZ1_ 
capias utlagatum, he must satisfy the landlord his year's rent, 
because that writ is to be considered only as a private execu- 
tion (p) ; but a seizure of goods under a power pe;' vad'tos out 
of the Court of Common Pleas at Durham was held not to be a 
seizure under an execution within the meaning of the statute, 
although such a seizure had the effect of a seizure under an 
execution (r^). A commission of bankruptcy is not an execution 
within this statute ; and although the landlord has a right to 
distrain goods on the premises for a year's rent, notwithstanding 
the bankruptcy of the tenant (r), yet it was held that where the 
sheriff' executed a ji. fa., and paid the landlord a year's rent 
after an act of bankruptcy committed by the defendant, that the 
sheriff was answerable for the amount of that rent to the as- 
signees in an action for money had and received (5). 

The landlord is entitled to a full year's rent, although he may 
have been used generally to remit some portion of it to the 
tenant (t). The sheriff" is not bound to remove the goods in 
execution, unless the party at whose suit the execution is sued out 
shall, before the removal of such goods, pay the landlord a year's 
rent(M). Nor is he bound to levy at all, whatever be the value 
of the goods, unless the execution creditor, having notice, first 
satisfies the landlord's rent(x). If the goods are not sufficient 
to satisfy the year's rent of which he has notice, he ought to 
withdraw from possession (?/). If the sheriff" do not pay over 
to the landlord his rent under this statute, an action on the 
case may be maintained against the sheriff" (2), which action 
will lie, after the death of the landlord, for his executor or 
administrator (a) ; but the landlord cannot, to recover under this 

(0) Henchett v. Kimpson, 2 VVils, 28; 1 RI. & Sc 92, S. C, 

140. (m) Calvert v. Joliffe, 2 B. & Ad. 

(p) Rex V. Southerby, Bunb. 5; 421, Lord Tenterden, C.J. See also 

Greaves v. d'Acastro, Bunb. 194; Riseley v. Ryle, 11 M. .i; W. 21, 

Rex V. Pritchard, Bunb. 269 ; Si. Parke, B. 

John's College t'. Murcott, 7 T. R. (i) Cockem. Musgrove, 15 Law J., 

264. Q. B. 365. 

(9) Brandling v. Barrington, 6 B. (y) Ihid., and see Foster v. Hilton, 

& C. 467. 1 liowl. 35. 

(r) See 6 Geo. 4, c. 16, s. 74. (s) Riseley v. Ryle, 11 M. & VV. 

(s) Lee V. Lopes, 15 East, 230 ; 16. 

Ex parte Desharmes, I Atk. 103 ; see (a) Palgrave v. Windham, Stia, 

also Gethin i>. Wilks, 2 Dowl. 189. 212. 

(«) Williams v. Lewsey, 8 Biug. 



278 sheriff's duties in the execution of a fieri facias. 

CHAP. X. statute, maintain an action for money had and received (6). 
_!^_!lZl_ The sheriff must have notice of the rent being due whilst the 
proceeds are in his hands, to make him liable to an action (c) : 
but no specific form of notice is prescribed by the statute ; it is 
sufficient that knowledge of the rent being due is brought home 
to the sherifr(c/). A declaration under the statute of Anne 
against the sheriff must distinctly allege that the tenancy in the 
premises was subsisting at the time of the seizure (e) ; but it 
need not allege that the goods taken were distrainable goods (/), 
nor need it aver any notice to the execution creditor (g). The 
sheriff is not liable to an action unless there has been an actual 
removal of the goods from the premises, and the execution of a 
bill of sale of them is not equivalent to such removal (/«). If the 
landlord declares against the sheriff in two counts, one on the 
statute of Anne and the other in trover, claiming, so far as re- 
gards the second count, under a fraudulent bill of sale, he is not 
thereby prevented from recovering on the first count, for that is 
distinct from the second (i). If an action is brought against the 
sheriff on the statute of Anne, the court will not stay proceed- 
ings on payment by him of the proceeds of the sale of the goods 
removed (k). Instead of bringing an action, the landlord may 
move the court that he may be paid what is due to him out of 
the money levied, if sufficient for that purpose, or otherwise so 
much as the sheriff has levied (/). The landlord is entitled to 
his rent without any deduction for poundage (m) ; but where he 
takes the security of a third person for the rent at the time of 
the execution, the sheriff is discharged as to the landlord's claim 
for rent(n). If the plaintiff bring an action against the sheriff 
for the money levied, the sheriff must prove that the rent was 

(6) Green v. Austin, 3 Camp. 260. (h) Smallman v. Pollard, 1 Dowl. 

(c) Smith j;. Russell, 3 Taunt. 400; & L. 901. 

Waring v. Dewberry, Stra. 97. (/) Reed v. Thoyts, 6 M. & W. 

(d) Collyer v. Spear, 2 Brod. & 410. 

Bing. 67 ; Andrews v. Dixon, 3 Bar. (k) Foster v. Hilton, 1 Dowl. 30; 

& Aid. 645; Arnilt v. Garnett, 3 Calvert d. Joliffe, 2 B. & Ad. 418. 

Bar. & Aid. 440; Riseley v. Kyle, (/) Henchett u. Kimpson, 2 Wils. 

11 M. & W. 20, Parke, B. 140; Darling v. Hill, Rep. Temp. 

(e) Riseley v. Ryle, 10 M. & W. Hardw. 255; West w. Hedges, Barnes, 
101. 211; and see Haunw. Capell, Barnes, 

(/) Riseley v. Ryle, 11 M. & \V. 199. 
16. (m) Gore v. Gofton, Stra. 643. 

(g) Ibid. (n) Rotheray v. Wood, 3 Camp. 24. 



landlord's claim for rent. 279 

due, in order to discharge himself as to a payment for a year's chap. x. 
rent made by him to the landlord (o). ' 

And by the statute of the 43 Geo. 2, c. 99, s. 37, it is enacted, 
that '• no goods or chattels whatever belonging to any person at 
the time any of the said duties" (which are all the duties under 
the management of the commissioners for the affairs of taxes) 
" to be assessed under the regulations of this act became in 
arrear, shall be liable to be taken by virtue of any execution or 
other process, warrant, or authority, or by virtue of any assign- 
ment, on any account or pretence whatever, except at the suit 
of the landlord for rent, unless the party at whose suit the said 
execution or seizure shall be sued out or made, or to whom such 
assignment shall be made, shall, before the sale or removal of 
such goods or chattels, pay or cause to be paid to the collector 
or collectors of the said duties so due all arrears of the said 
duties which shall be due at the time of seizing such goods or 
chattels, or which shall be payable for the year in which such 
seizure shall be made, pi'ovided the duties shall not be claimed 
for more than one year ; and in case the said duties shall be 
claimed for more than one year, then the said party at whose 
instance such seizure shall have been made, paying the collector 
or collectors the aforesaid duties due for one whole year, may 
proceed in his seizure as he might have done if no duties had 
been so claimed ; but in case of refusal to pay the said duties, 
the said collector or collectors are hereby authorized and re- 
quired to distrain such goods and chattels notwithstanding such 
seizure or assignment, and proceed to sale thereof according to 
this act, in order to obtain payment of the whole of the said 
duties so assessed, together with the reasonable costs and charges 
attending such distress and sale." 



Section VI. 

The Sheriff'' s Duty in Case of adverse Claims. — Interpleader. 

As the sheriff is bound to execute the writ at his peril, where 
the defendant becomes bankrupt, and his assignees claim the 
goods, or there be any doubt whether or not the goods are liable 

(o) Keiglilley v. Birch, 3 Camp. 521. 



280 sheriff's duties in the execution of a fieri facias. 

CHAP. X. to be taken on a fi. fa., the sheriff should immediately apply to 
^^^' ^'' the court from which the writ issues for protection, if one party 
will not give him a sufficient indemnity ; otherwise, by seizing 
the goods, or by returning nulla bona, the sheriff may subject 
himself to an action (yj). Before the passing of the statutes re- 
lating to interpleader, wherever the property in goods seized on 
aji.fa. was disputed, the courts were accustomed, on the sug- 
gestion of a reasonable doubt, to enlarge the time for the sheriff 
to make his return until the right was tried between the con- 
tending parties, or until one of them had given a sufficient in- 
demnity to the sheriff or to his officer (^). Thus, where the 
sheriff had seized goods by virtue of aji. fa., but by the direc- 
tion of the plaintiff the officer abandoned the execution, the 
warrant on that writ was placed again in the hands of an officer 
who was in possession under another writ; the defendant having 
become bankrupt, the officer, after satisfying the plaintiff in the 
second writ, delivered the remainder of the goods up to the 
assignees of the defendant ; the sheriff being ruled to return 
the first writ, the Court of Common Pleas enlarged the time for 
the sheriff to make his return until he was indemnified (r). So 
the Court of King's Bench, upon the application of the sheriff, 
enlarged the time for his making a return to a. fieri facias, (upon 
the suggestion of a reasonable doubt whether the goods seized 
under the writ were not covered by an extent, issued at the suit 
of the crown for malt duties), for the purpose of inducing the 
plaintiff to go into the Court of Exchequer, and there contest 
the question of right with the crown in a more eligible manner 
than in that court (s). And where the defendant had become 
bankrupt after the seizure, but before the goods were sold, and 
the assignees claimed the goods, the Court of Common Pleas 
stayed proceedings in an action commenced against the sheriff 
on his selling the goods and bringing the money into court {t). 
It was, however, quite discretionary in the courts, as well 

(p) See Keiglitley y. Birch, 3 Camp. bridge, 2 Blac. Rep. 1064. 

620; Saunders v. Bridges, 3 Bar, & (r) Burr v. Freethey, 1 Bing. 71 ; 

Aid. 95. 7 Moore. 368, S. C. 

(7) Venables w. Wilks, 4 Moore, {s) Wells i;. Fickman, 7 T. H. 174. 

339; Thurston D. Thurslon, 1 Taunt. (() Mac Geoige j;. Birch, 4 Taunt. 

120; Ledbury v. Smiih, 1 Chitty's 585; King d. Bridges, 1 Moore, 43 ; 

Rep. 294; Rex t>. Sheriff of Devon, 7 Taunt. 294. S C. ; Ledbury v. 

I Chitty's Rep. 843; Shaw v. Tun- Smith, 1 Chitty's Rep. 294. 



IN CASE OF ADVERSE CLAIMS. 281 



SECT. VI. 



whether or not they would interpose to protect the sherifF(M), chap 
as upon what terms they would protect him. In one case, the 
court granted a rule for enlarging the time for the sheriff to 
make his return from term to term until the sheriff should be 
indemnified (x) ; in another case, the time was enlarged for a 
certain number of days, in order that the sheriff might satisfy 
himself as to the property {y) ; in another case, the time was 
enlarged until the right should be settled in another court (s). 
If the sheriff or his officer had favoured one party by throwing 
obstacles in the way of or by delaying the other party, the 
courts would not protect him (a) ; or the sheriff, by not apply- 
ing to the court in time, might lose its protection. Thus, where 
the sheriff, under a. Ji.fa. and a writ of extent, seized not only 
the defendant's goods, but also goods belonging to a stranger 
which were on the premises, and the sheriff returned to both 
writs that he had seized goods to the amount, but that they 
remained in hands for want of buyers, the sheriff being obliged 
afterwards, by order of the Court of Exchequer, to levy the 
amount of the extent upon the defendant's goods, and not upon 
the goods of the stranger, and having no longer goods of the 
defendant to satisfy the^.^a., he applied to the court for leave 
to amend his return to the latter writ. The court, however, 
refused to allow the amendment, saying, that as he had seized 
sufficient property of the defendant under this writ, he must be 
accountable to the plaintiff for it : had he, as soon as he received 
the order of the Court of Exchequer, stated the facts of the case 
to that court, they would have relieved him from his embarrass- 
ment. Again, where the law was clear on the subject, the 
courts would not interfere to protect the sheriff. Thus, where 
the sheriff had seized partnership property on a ji. fa. ao-ainst 
one of several partners, the Court of Common Pleas refused to 
enlarge the time for the sheriff to make his return till the part- 
nership creditors had taken an account of the claims on the pro- 
perty, because the law on the case was clear, intimating that the 
safest course for the sheriff to pursue was for him to put some 

(m) See cases cited ajife, notes (^), (y) Etchells v. Lovatt, 9 Price, 

(?•), (s), and (i), and fwit, note (i). 54. 

(.1) Venables i'. Wilks, 4 ^]oole, (:) Wellsi;, Pickman, 7 T. R. 174. 

339. See also Probiuier v. Roberts, («) Timbrel! D.Mills, I Blac. Hep. 

1 Chitly's Rep. 577 ; Ihurston v. 205. 
Thurston, I Taunt. 120. 



282 sheriff's duties in the execution of a fieri facias. 

CHAP. X. person into possession of the defendant's share as vendee, leaving 

'- — 1 him and the parties to litigate their respective rights in a court 

of equity (c). 
Of impanti- Where the sheriff had a doubt to whom the property in goods 
irKi'iiie into scizcd by him on a. Ji.fa. belongs, he might impanel a jury to 
the gifo'u." inquire as to that fact ; and it was formerly supposed that this 
would justify the sheriff in returning that the defendant had no 
goods within his bailiwick ((Z), and mitigate the damages in an 
action of trespass, if the goods seized should happen not to be 
the defendant's {e). But it was afterwards determined that such 
an inquisition, finding the goods in a third person, was not ad- 
missible in evidence in an action against the sheriff for a false 
return of nulla bona to a fi.fa.(^f). In the same case Lord 
EUenborough, C. J., said that he should think it might perhaps 
be evidence if the question were whether the sheriff had acted 
maliciously, but beyond that he could not see how it could be 
evidence (g-). It would therefore seem that there was not any 
real benefit to be derived by holding such an inquest ; and that 
proceeding has now become altogether obsolete by reason of 
the statutory provisions which are now to be noticed, enabling 
the sheriff, in case of adverse claims, to apply to the courts for 
relief by way of interpleader. 
Interpleader. The Stat, 1 & 2 Will. 4, c. 58, s. 6, after reciting that diffi- 
culties sometimes arise in the execution of process against 
goods and chattels, issued by or under the authority of the said 
courts, by reason of claims made to such goods and chattels by 
assignees of bankrupts and other persons not being the parties 
against whom such process has issued," whereby sheriffs and 
other officers are exposed to the hazard and expense of actions, 
and it is reasonable to afford relief and protection in such cases 
to such sheriffs and other officers ; it enacts, " that when any 
such claim shall be made to any goods or chattels taken or 
intended to be taken in execution under any such process, or to 
the proceeds or value thereof, it shall and may be lawful to and 
for the court from which such process issued, upon application 

(c) Parker t). Pistor, 3 Bos. & Pul. (e) Bro. Abr. Trespass, 99; Keilvv. 

288. See also Chapman v. Koops, 119; 4 T. R. 633; Dalton, 146; 1 

3 Bos. & Pul. 289. Doug. 40. 

(rf) Gilb. P:xeculion, 21 ; Dalton, (/) Glossop v. Pole, 3 M. & Sel. 

146; see also Laikow v. Earner, 2 H. 175. 

Blac.437; 6 T, R. 88. {g) Ihid. 177. 



INTERPLEADER. 283 

of such sheriff or other officer made before or after the return chap. x. 

of such process, and as well before as after any action brought ! L_ 

against such sheriff or other officer, to call before them, by rule 
of court, as well the party issuing such process as the party 
making such claim, and thereupon to exercise, for the adjust- 
ment of such claims and the relief and protection of the sheriff 
or other officer, all or any of the powers and authorities herein- 
before contained, and make such rules and decisions as shall 
appear to be just, according to the circumstances of the case; 
and the costs of all such proceedings shall be in the discretion 
of the court." 

The reference in this section to the *' powers and authorities 
hereinbefore contained" renders it necessary to state the other 
sections of the act, the direct application of which is to cases in 
which a bill of interpleader in equity might before have been 
brought. 

The 1st section enacts, " that upon application made by or on 
the behalf of any defendant sued in any of his majesty's courts 
of law at Westminster, or in the Court of Common Pleas of the 
county palatine of Lancaster, or the Court of Pleas of the county 
palatine of Durham, in any action of assumpsit, debt, detinue, 
or trover, such application being made after declaration, and 
before plea, by affidavit or otherwise, showing that such de- 
fendant does not claim any interest in the subject-matter of the 
suit, but that the right thereto is claimed or supposed to belong 
to some third party who has sued or is expected to sue for the 
same, and that such defendant does not in any manner collude 
with such third party, but is ready to bring into court or to pay 
or dispose of the subject-matter of the action in such manner as 
the court (or any judge thereof) may order or direct, it shall be 
lawful for the court, or any judge thereof, to make rules and 
orders calling upon such third party to appear and to state the 
nature and particulars of his claim, and maintain or relinquish 
his claim, and upon such rule or order to hear the allegations as 
well as of such third party as of the plaintiff, and in the mean- 
time to stay the proceedings in such action, and finally to order 
such third party to make himself defendant in the same or some 
other action, or to proceed to trial on one or inore feigned issue 
or issues, and also to direct which of the parties shall be plaintiff 
or defendant on such trial, or, with the consent of the plaintiff 



JSl sheriff's duties in the execution of a fieri facias. 

CHAP. X. and such third party, their counsel or attornies, to dispose of 
_l^!l!ll'' the merits of their claims and determine the same in a summary 
manner, and. to make such other rules and orders therein as to 
costs and all other matters as may appear to be just and rea- 
sonable.'' 

The 2nd section provides, " that the judgment in any such 
action or issue as may be directed by the court or judge, and 
the decision of the court or judge in a summary manner, shall 
be final and conclusive against the parties, and all persons 
claiming by, from, or under them." 

By section 3 it is enacted, " that if such party shall not appear 
upon such rule or order to maintain or relinquish his claim, 
being duly served therewith, or shall neglect or refuse to comply 
with any rule or order to be made after appearance, it shall be 
lawful for the court or judge to declare such third party, and 
all persons claiming by, from, or under him, to be for ever 
barred from prosecuting his claim against the original defend- 
ant, his executors or administrators, saving nevertheless the 
right or claim of such third party against the plaintiff; and 
thereupon to make such order between such defendant and the 
plaintiff, as to costs and other matters, as may appear just and 
reasonable." 

Section 5 provides, " that if, upon application to a judge in 
the first instance, or in any later stage of the proceedings, he 
shall think the matter more fit for the decision of the court, it 
shall be lawful for him to refer the matter to the court ; and 
thereupon the court shall and may hear and dispose of the same 
in the same manner as if the proceeding had originally com- 
menced by rule of court, instead of the order of a judge." 

The 7th section enacts, " that all rules, orders, matters and 
decisions to be made and done in pursuance of this act, except 
only the affidavits to be filed, may, together with the declaration 
in the cause (if any), be entered of record, with a note in the 
margin expressing the true date of such entry, to the end that 
the same may be evidence in future times, if required, and to 
secure and enforce the payment of costs directed by any such 
rule or order ; and every such rule or order so entered shall 
have the force and effect of a judgment, except only as to be- 
coming a charge on any lands, tenements, or hereditaments ; 
and in case any costs shall not be paid within fifteen days after 



INTERPLEADER. 285 

notice of the taxation and amount thereof given to the party chap. x. 
ordered to pay the same, his agent or attorney, execution may sect, vi. 
issue for the same by Jierl facias or capias ad satisfaciendum, 
adapted to the case, together with the costs of such entry, and 
of the execution if hy fieri facias ; and such writ and writs may 
bear teste on the day of issuing the same, whether in term or 
vacation ; and the sheriff or other officer executing any such 
writ shall be entitled to the same fees, and no more, as upon 
any similar writ grounded upon a judgment of the court." 

It will be observed, that although by the other sections of 
this statute the power of adjudication is given either to the 
court or a judge thereof, the 6th section, by enacting that it 
shall be lawful for "the court from which the process issued" 
to call the parties before them " by rule of court," expressly 
reserved the jurisdiction, in the case of an application by the 
sheriff, to the court in banc (A). But this being found inconve- 
nient, by a subsequent statute, 1 & 2 Vict. c. 45, s. 2, after 
reciting the 6th section of the 1 & 2 Will. 4, c. 58, it is pro- 
vided that it shall be lawful for any judge of the Courts of 
Queen's Bench, Common Pleas, or Exchequer, with respect to 
any process issued out of any of those courts, or for any judge 
of the Court of Common Pleas of the county palatine of Lan- 
caster, or Court of Pleas of the county palatine of Durham 
(being also a judge of one of the three superior courts), with 
respect to process issued out of the courts of Lancaster or 
Durham respectively, to exercise such powers or authorities for 
the relief and protection of the sheriff or other officer, as may, 
by virtue of tlie said act, be exercised by the said several courts 
respectively, and to make such order thereon as shall appear to 
be just; and the costs of such proceeding shall be in the discre- 
tion of such judge. The application may now, therefore, be 
made at chambers, and, by reason of the common jurisdiction of 
the judges of the superior courts of common law under the 1st 
section of the same statute (1 & 2 Vict. c. 45), to any judge of 
any of those courts, from whatever court the process issued. 
If made in court, it can only be to the court in which the action 
is pending ; and if there be two actions in different courts, an 
application must be made in each (J). In the Exchequer and 

(fe) See Bragg V. Hopkin3,2 Dowl. 151. (i) Allen i;. Gylby, 3 Dowl. 143. 



280 sheriff's duties in the execution of a fieri facias. 

CHAP. X. Common Pleas, the rule nisi will not operate as a stay of pro- 
SECT. VI. ceedings without previous notice (/). The decision of the judge 
is in general subject to review by the court ; but where, by 
consent of the parties, the judge disposes summarily of an inter- 
pleader order, the court has no authority to review his deci- 
sion (wj). In the exercise of this jurisdiction, it will be seen 
that most of the principles upon which the courts previously 
acted, in giving relief to the sheriff in the case of adverse 
claims (n), are still applied. 

No action need be pending against the sheriff, to entitle him 
to apply for relief; but there must be a bond jide claim actually 
made, to warrant the application (o). Notice of a lien will justify 
the application (p). But a distress for rent (*/), or a claim 
arising out of proceedings in equity (r), will not suffice. Notice 
of other writs will not entitle the sheriff to relief (s) ; but the 
court may relieve him where it is doubtful which writ is en- 
titled to precedence (t). The court will not interfere against a 
naked claim by the defendant's partner ; but if the whole pro- 
perty in the goods be claimed, it will (ii). So mere notice of a 
fiat in bankruptcy, without a claim by the assignees, will not 
entitle the sheriff to relief(a;). The sheriff is not entitled to 
relief, unless he has actually seized or is in possession of the 
goods (?/); but it is immaterial in whose possession the goods 
were when seized by the sheriff (2;). 

The sheriff must come promptly to the court after he has 
notice of the claim (a), unless the delay can be satisfactorily 

(0 Smith I'. Wheeler, 3 Dowl. 431. (m) Holmes v. Mentze, 4 Ad. & 

(m) Shortridger. Young, 12 M. & Ell. 127; 5 N. & M. 563; 4 Dowl. 

W. 5 ; see Harrison v. Wright, 13 M. 300. 

& W.816. (x) Bentley v. Hook, 2 C. & M. 

(n) Ante, 2Z0. 426; 2 Dowl. 339; see Barker v. 

(0) Isaac V. Spilsbury, 10 Bing. 3; Phipson, 3 Dowl. 590. 

3 M. & Scott, 341 ; 2 Dowl. 211 ; (y) Holton v. Guutrip, 3 M. & W. 

Slowman v. Back, 3 B. & Ad. 103; 145; 6 Dowl. 130. 

Fenwick v. Laycock,2 Q. B. 111. (z) Allen v. Gibson, 2 Dowl. 292. 

(7;) Ford D. Bayntun, 1 Dowl. 357. (a) Devereux v. John, 1 Dowl. 

(q) Haythorn v. Bush, 2 Dowl. 548; Cook «. Allen, 1 C.& M. 542; 

641. 2 Dowl. 1 I ; Dixon v. Ensell, 2 Dowl. 

(r) Sturgess v. Claude, 1 Dowl. 621; Skipper i;. Lane, 4 M. & Scott, 

505; see Putnevv. Tring, SM.cSc W. 283; 2 Dowl. 784; Kidgway D.Fisher, 

425; Roach d." Wright, 8 M. & W. 3 Dowl. 567; Barker v. Phipson, 3 

155. Dowl. 590; Brackenbury v. Laurie, 3 

(s) Salmon v. James, 1 Dowl. 369. Dowl. 180 ; Beale v. Overton, 2 M. 

(0 Day V. Waldock, 1 Dowl. 523; & W. 534 ; 5 Dowl. 599. 
sed qutere. 



INTERPLEADER. 287 



SECT. VI. 



accounted for. He must apply before the goods are sold, and chap 
the produce paid over, whether at that time he knew of the 
claim or not {b) ; and if he deliver the goods (or, as it seems, 
any part of them) to the claimant, he thereby precludes himself 
from relief under the act (c). In prudence, the sheriff should 
inquire into the nature of the claims before he applies to the 
court (d) ; but he need not ask the parties for an indemnity (e), 
nor, if offered, is he bound to accept it(f). Indeed, he must 
be indifferent between the parties, and therefore if he take an 
indemnity, or either himself or his under-sheriff be the execution 
creditor, or the partner of the execution creditor, the court will 
not relieve him (g). It is not however necessary, as it was at 
one time supposed, for the sheriff to deny collusion (A). 

No person can appear before the court or judge on the hear- 
ing who is not a party to the rule (i) ; but if a new claim be 
made after the rule nisi is granted, the sheriff may make such 
claimant a party to the rule (A;). It seems that a foreigner re- 
siding abroad cannot be compelled to come in under this act (/), 
neither can the Crown (»i). But the sheriff may be relieved, 
though the claimant is an infant (n). 

If the sheriff does not appear to support his rule, it will be 
discharged with costs. If the claimant does not appear, he will 
be barred (o) from proceeding against the sheriff, and must pay 
the costs of the execution creditor, but not of the sheriff (j)). 
If the execution creditor does not appear, he likewise will be 

(b) Anderson v. Calloway, 1 C. & Boond v. Woodhall, 2 C. M. & R. 
M. 182; 1 Dowl. 636; 3 Tyr. 237; 604; 4 Dowl. 351. 
Scott V. Lewis, 2 C. M. & R, 289 ; 4 (i) Clarke v. Lord, 2 Dowl. 55 ; 
Dowl. 259; Ireland v. Bushell, 5 but see Ibbotsonr. Chaadler, 9 Dowl. 
Dowl. 147. 250. 

(c) Braine v. Hunt, 2 C. & M. (k) Kirk v. Clarke, 4 Dowl. 363. 
418 ; 2 Dowl. 391. (I) Patorni v. Campbell, 12 M. & 

(d) Bishop V. Hinxman, 2 Dowl. W. 277. 
166; In re Sheriff of Oxfordshire, 6 (m) Candy v, Maugham, 7 Scott, 
Dowl. 136. N. R. 402. 

(e) Cropley V. Ebers, 1 Harr. & W. (n) Claridge v. Collins, 7 Dowl. 
216. 698. 

(/) Levy V. Champneys, 2 Dowl. (o) 1 & 2 Will. 4, c. 58, s. 3. 

454. Ip) Bowdler v. Smith, 1 Dowl. 

(g) Dudden v. Long, 1 ScoU, 281 ; 417 ; Lewis v. Eicke, 2 C. & M. 32 1 ; 

1 Bing. N. C. 299 ; 3 Dowl, 139 ; 2 Dowl. 337 ; Jones v. Lewis, 2 M. 

Ostler V. Bower, 4 Dowl. 605; Pa- & W. 204 ; see Perkins v. Burton, 2 

torni V. Campbell, 12 M. & W. 277 ; Dowl. 108; 3 Tyr. 51 ; Philby v. 

Cox V. Balne, 2 Dowl. & L. 719. Eicke, 2 Dowl. 222 ; Oram v. Shel- 

(h) Donniger v. Hinxman, 2 Dowl. don, 1 Scott, 697j 3 Dowl. 640. 
424; Dobbins i>. Green, 2 Dowl. 509; 



:o8 SHERIFF S DUTIES IN THE EXECUTION OF A FIERI FACIAS. 

CHAP. X. barred ((7), and must pay to the adverse claimant the costs of the 
^'^^'^' ^^' application (r) ; but not to the sherifF(s). If the sheriff has 
sold, he will in that case have to pay the proceeds to the claim- 
ant (<) ; if he has not sold, he must withdraw from the posses- 
sion (?/). In this case the sheriff will not be entitled to his 
poundage, for the execution should not have been levied ; but 
if neither party appears, each, as against the sheriff, will be 
barred, and the sheriff may levy his poundage and expenses be- 
fore abandoning the remainder of the levy(x'). If all the parties 
appear (and for this purpose it is not necessary to take office copies 
of the affidavit on which this rule nisi was obtained (y) ), the 
court or a judge cannot, without consent of the parties, deter- 
mine the right, but must direct one or more issues for that pur- 
pose (z). Although no order can be finally made, the claimant 
must state the nature and particulars of his claim (a) ; but the 
execution creditor may rely upon his judgment without more (6). 
The court or judge has power to make such order as to costs as 
may appear to them or him to be just and reasonable (c) ; if the 
application be made to a judge at chambers, a judge at chambers 
only has original jurisdiction as to the costs (c?), his order being 
subject to review by the court in hanc{e). 

If, after it has been directed, the claimant abandons the issue, 
the court will compel him to pay the costs of the execution cre- 
ditor up to the time of his abandoning it (/) ; and also the costs 
incurred in enforcing such payment {g). He will also be liable 
to the sheriff's costs incurred subsequently to the order for the 
issue. So, if the execution creditor decline to proceed, he will 
be liable to the costs of the claimant, and the sheriff's costs 
subsequent to the rule {li). If the issue is tried, the successful 

(q) ford V. Dilly, 5 B. & Ad. 885; to the extent of the issue, see Abbott 

2 N. & M. 662. " V. Richards, 15 M & W. 194. 

(r) Tomlinson v. Done, I Harr. & (a) Powell v. Lock, 4 N. & M. 852. 

W. 123. (6) Angus v. Wootton, 3 M.& W. 

(s) Jhid. ; Beswick v. Thomas, 5 310. 

Dowi. 458. (f) 1 & 2 Will, 4, c. 58, s. 1. 

(0 Gethin V. Wilks, 2 Dowl. 189. ((/) Burgh v. Schofield, 9 M. & 

(» ) Field V. Cope, 2 C. & J. 480 ; W. 478. 

1 Dowl. 567. (e) Teggin v. Langford, 10 M. & 

(:r) Eveleigh v. Salsbury, 3 Scott, W. 556. 

674; 5 Dowl. 369; 3 Bing. N. C. (/) Wells t;. Hopkins, 3 Dowl. 346. 

298. ig) Scales v. Sargeson, 3 Dowl. 707. 

(y) Mason v. Redshaw, 2 Dowl. ( h) Dobbs v. Humphreys, 1 Scott, 

595. 325 ; 3 Dowl. 377 ; 1 Bing. N. C. 

(s) 1 & 2 Will. 4, c. 58, s. 1 ; 412. 
Curlewis v. Pocock, 5 Dowl. 38 1. As 



IN CASE OF ADVERSE CLAIMS. 



289 



SECT. VI. 



party will be entitled to the costs of the trial and also of the chap. x. 

rule. If, by order of the court, the sheriff has kept possession 

of the goods, or sold them, or done any other act for the benefit 

of the parties, he will be entitled to the costs so incurred from 

the unsuccessful party (i). If the execution creditor succeed, 

the sheriff is entitled to poundage, otherwise he is not (A;). 



Section VII. 
Fieri Facias, Sheriff's Return to. 
The sl^erifF is not obliged, unless ruled so to do, to make a Sheriff, when 

«„.^. r • • rr>- • • n • Obliged to re- 

return to a writ oi Jieri jacins, for it is a surhcient justification tumajE./o. 

to the sheriff, in an action of trespass for taking the defendant's 

goods, to plead that he took them by virtue of 2ifi.fa. directed 

to him, w'ithout showing it returned (Z). But either the plaintiff 

or the defendant may rule the sheriff to return the writ(m), and 

if he neglect to make his return before the expiration of the 

rule, the court will grant an attachment against him («). Either 

party may rule the sheriff to return the writ, although there has 

been no sale, but the defendant has paid the money (o). But 

where there has been a compromise between the parties, neither 

the plaintiff nor the defendant can rule the sheriff to return the 

writ (2:)). Where the plaintiff has appointed a special bailiff (y), 

or where there is any collusion between the sheriff's officer 

and the plaintiff, or his attorney (r), the plaintiff cannot rule the 

sheriff to return the writ; and if the sheriff be ruled to return 

the writ under such circumstances^ he should move to set aside 

th3 rule (s). 

(i) Armltage v. Forster, 1 Harr.& (o) Edmunds d. Watson, 2 Marsh. 

W. 208 ; Bland i>. Delano, 6 Dowl. 330 ; 7 Taunt. 5, S. C. 

293. (p) Alchin v. Wells, 5 T. R. 470 j 

(A;) Barker v. Dynes, 1 Dowl. 169. Hedges v. Jordan, 5 Dowl. 6. 

(0 Cheaseley v. Barnes, 10 East, (g) Pallister i'. Pallister, 1 Chit. 

73. Rep. 614, n. ; Porter v. Viner, 1 

(m) France v. Clarkson, 2 Dowl. Chit. Rep. 613, n. 

532 ; but in the case of a ca. sa. see (r) Ruston r. Hatfield, 3 Bar. & 

Williams V. Webb, 2 Dowl. N. S. Aid. 204; 1 Chit. Rep. 613. S. C. 

904 ; ante, 81. (s) De Moranda i'. Dunkin, 4 T. R. 

(«) As to the rule, and at what 119; see also Hamilton v. Dalziel, 2 

time the attachment may be moved Black. Rep. 952 ; Alchin v. Wells, 5 

for, see ante, 81 et seq. T. R. 470. 



UyU SHERIFF S DUTIES IN THE EXECUTION OF A FIERI FACIAS. 

CHAP. X. The Court of Common Pleas, however, refused to set aside 
SECT, vii. gjj^i^ ^ ^^j|g^ where the object was to have a return oi" nulla bona, 



in order to issue a ca. sa., the plaintiff undertaking to pay the 
costs and to bring no action for a false return (i). The sheriff 
must either return nulla bona or bona, and it is not a good 
return to say that the defendant's premises are so barricaded 
and fastened up as to be inaccessible, by reason of which the 
sheriff is unable to say whether the defendant has any goods 
whereon a levy can be made (u). 

In making a return to a Ji. fa., a reasonable degree of cer- 
tainty is sufficient, and therefore a return, " I have caused to be 
made of the goods of A. B. 221. 2s., out of which I have paid 
\\l. 5s. for rent due for the premises wherein the said goods 
and chattels were taken in execution," &c. was held good, inas- 
much as the return as against the sheriff must be understood to 
be that the rent was due at the time of the seizure (v). 

Where several writs are delivered to the sheriff at the same 
moment, the court will not compel the plaintiffs, or their attor- 
ney, to direct in what priority they are to be executed, so as to 
enable the sheriff to make his return with certainty (x). 
Nulla bona. If the defendant has no goods in the county into which the 
writ is directed, or if the sheriff is not informed of any that he 
has, lie should return nulla bona (y) ; and where there is a dis- 
pute whether the goods belong to the defendant or to a third 
person, the proper course is for the sheriff to apply to the 
court under the Interpleader Act (sj. Nulla bona means no 
goods liable to the plaintiff's execution, and therefore it is 
the proper return to make where goods seized under a war- 
rant are insufficient to satisfy a f. fa. previously lodged (a), or 
where the goods seized are swallowed up by payment of a 
year's rent to the landlord, under the statute of Anne (6). If 
goods seized under a f. fa. are claimed by a third party, upon 

(0 Harding v. Holder, 9 Dowl. 2 Dowl. N. S. 377. 

659; 2 Man. & G. 914, S. C. (y) See forms, post. Appendix. 

(w) Munk V. Cass, 9 Dowl. 333. (s) Ante, 282 et seq. 

(v) Reynolds V. Barford, 2 Dowl. (a) Heenani'. Evans, 3Man. & G. 

& L. 327 ; 7 Man. & G. 449 ; see 398 ; 4 Scott. N. R. 2 ; 1 Dowl. N. S. 

also Wintle y. Freeman, 11 Ad. & E. 204, S.C; Drewei;.Lainson, 11 Ad. 

547, per Patteson, J., " the sheriff, & E. 529. 

in making his return, is not bound (b) Wintle i". Freeman, 11 Ad & 

by the rules of special pleading." E. 539. 

(x) Ashworlh v. Earl of Uxbridge, 



291 



SECT. VII. 



which an interpleader order is made directing an issue to be chap 
tried, and afterwards the plaintiff directs the sheriff to deliver 
up the goods to the claimant, it is not sufficient to return those 
facts, without also returning that the defendant had no other 
goods out of which the execution could be satisfied (c). 

If the sheriff has seized and sold goods to the amount of the Fieri fed. 
debt, he must make his return, that he has levied, &c., and that 
he has the money ready ; if the goods sold are not sufficient to 
satisfy the whole debt, he should return _)?eri feci as to so much, 
and Jiulla hona as to the residue (rf). It is sufficient to make the 
return in general terms, for the courts will not compel the sheriff 
to specify in his return to a fieri facias the particular goods 
taken, and the sum for which each article is sold (e). It is the 
duty of the sheriff, in executing a writ offi.fa., to seize all the 
goods of the debtor within his bailiwick, or at least sufficient to 
satisfy the writ ; therefore to a declaration against the sheriff 
for neglecting to levy, and falsely returning goods in hand for 
want of buyers, a plea that the plaintiff had directed him to 
withdraw from the possession of certain goods, and that he 
had seized certain others, which remained in his hands unsold 
for want of buyers, was held bad, because both those propo- 
sitions might be true, and yet there might have been other 
goods out of which the sheriff might have levied (/). If the 
sheriff, having a full opportunity of ascertaining the facts which 
would enable him to make such a return as would protect him, 
returns fieri feci, he is bound by his return (g). The sheriff 
cannot return generally that he has seized under two writs, e. g. 
"by virtue of this writ, and of another writ offi.fa. &c. I have 
seized, &c. (h)," but he may return that he has seized by virtue 
of several previous writs, according to the priority thereof (i). 
And he ought to show the amount due on each of the earlier 
writs, and the value of the goods seized (/c). 

If the sheriff take goods, but cannot sell them, he should re- Gootisinhand 

for want of 
biijers. 

(c) Cleaveri;. Fisher, 2 Dowl.N.S. (h) Wintle v. Lord Chetwynd, 7 
293. Dovvl. 554, explained /)er Patteson, J., 

(d) See forms, Appendix, ch. 10, in Wintle v. Freeman, 11 A. ik E. 548. 
s. 7. (i) Chambers v. Coleman, 9 Dowi. 

(e) Willett V. Sparrow, 6 Taunt. 588 ; and see a form of such a relura 
576 ; 2 Marsh. 293, S. C. same case. 

(/) Pitcher v. King, 5 Q, B.162. (/c) Wintle u. Freeman, 11 Ad. &E. 

Ig) Field V. Smith, 2 M. & W. 548, Patieson, J. 
388; 5 Dowl. 735, S. C. 

U 2 



292 sheriff's duties in the execution of a fieri facias. 

CHAP. X. turn that he has taken goods of the defendant, which remain in 
' his hands imsold for want of buyers. This return is proper 



where tlie sheriff cannot get a fair price for the goods (Z), for in 
such case he should wait for a venditioni exponas. The return 
to a writ o{ fieri facias, that the sheriff lias seized goods, which 
remain unsold for want of buyers, must state the goods to be of 
a certain value {m) ; the value stated is not material, for he may 
sell them on a venditioni exponas for less, and the judgment is 
only satisfied to the amount for which they are sold, if less than 
the value returned by the sherifl['(?i). But it is otherwise if 
the goods, after such a return, are rescued from or lost by the 
sheriff; in such case he is answerable to the plaintiff for the 
value returned (o). After such a return, the plaintiff may sue 
out a writ of venditioni exponas, reciting the former writ and 
return, and commanding the sheriff to expose the goods to sale, 
and have the monies arising therefrom in the court at the return 
of it ; or if the goods are not taken to the value of the whole, 
the plaintiff may have a venditioni exponas for part, and b. fieri 
facias for the residue, in the same writ. In a recent case, the 
Court of Common Pleas would not grant an attachment against 
the sheriff for returning to a writ of venditioni exponas that the 
goods remained unsold for want of buyers (p). 
Supersedeas. If a writ of error be delivered to the sheriff after he has seized 
goods, he must still proceed, but if a writ of error be allowed 
before he has taken the goods of the defendant, he should make 
his return accordingly ; for in a recent case, in an action against 
a sheriff for a false return of nulla bona, it appeared that a writ 
of error was allowed on the same day that the fi. fa. had issued: 
the court held that the plaintiff was entitled to a verdict and 
nominal damages, for he should have returned the supersedeas 
and not nulla bona, and the court would have relieved him(5'). 

(0 Keightley v. Birch, 3 Camp. Withers, 6 Mod. 293; 2 Lord Ray m. 

521. But see IStarkie, N.P. C. 41. 107, S. C. 

(m) Wintle i). LordChetwynd.sujj.; (p) Leaders. Davis, 1 Bos. & Pul. 

Chambers D.Coleman, sttp.; Barton 359; Anon, 2 Chitt. Rep. 390. Sed 

V. Gill, 12 M. & W. 315; 1 Dowl. & vide 6 Mod. 299 ; Cowp. 406. 
L. 593. (q) C leghorn v. Desanges, 3 Moore, 

(ji) Cro. Jac. 515; Godb. 276; 83. If a sheriff execute a >"./a. after 

but in Rex v. Bird, 2 Show. 87, it is a writ of error is allowed, but before 

said that if the sheriff value them too notice, it is not a contempt ; Cotton v. 

high, if nobody will buy them at that Dainty, 1 Vent. 29 ; 2 Keb. 506, 

rate, the sheriff must. 508, S. C. If the sheriff execute a 

(o) Per Molt, C. J., in Clerk v. Ji.J'a. after notice of the allowance of 



RETURN. 



To a li. fa. without a non omittas clause, if the defendant's chap. x. 
goods are entirely in a liberty, the bailiff whereof hath the return 



of writs, mandavi balUvo, together with the answer of the bailiff, baiiivo. 
if he has made any, or that he has made no answer, according 
to the fact, is a good return (r). If the sheriff returns mandavi 
hallivo et nullum dedit responsum, the bailiff should be then ruled 
to return the writ (s). 

Rescue is not a good return to afi.fa., for the sheriff is bound Rescne. 
to raise the posse comitatus (t). Indeed, if a sheriff return that 
he has levied goods to a certain amount, and that they were 
rescued from him, he will be liable to the whole amount of the 
value returned, although above their real value (f<). 

To a. fieri facias against an executor de bonis testatoris, if the Return to a 
sheriff cannot find any goods of the testator in the hands of the an executor, 
executor, he may return mdla bona; and upon that, the plaintiff 
may proceed by scire fieri inquiry: this writ, after reciting the 
fieri facias, and the sheriff's return of nulla bona, suggests that 
the executor had sold and converted the goods of the testator to 
the value of the debt and damages recovered, and commands the 
sheriff to levy the debt and damages of the goods of the testator 
in the hands of the executor, if they could be levied thereof; 
but if it should appear to him, by inquisition of a jury, that the 
executor had wasted the goods of the testator, then the sheriff 
is to warn the executor to appear, &c. Or, on the sheriff's 
return of nulla bona, the plaintiff may bring an action of debt 
on the judgment, suggesting a devastavit (^x). 

But if the sheriff cannot find assets, he may, if he please, re- 
turn a devastavit as well as 7iiilla bona to the writ oi fieri facias 
de bonis testatoris, for the^eri inquiry is only for his security (y). 
And the sheriff seems to run no great risk by so doing ; for 
the judgment, and no assets to be found, will be sufficient evi- 
dence of a devastavit, in an action against him for a false re- 

a writ of error, he is liable in tres- 198, S. C; 1 Roll. Rep. 388, 440. 

pass; Belshaw i=. Marshall, 4 B. & (u) Per Holt, C. J. in Clerk v. 

Adol. 336; I N. & iVl. 689. S. C. Withers, 6 Mod. 293; 2 Ld. Raym. 

Goods seized before a supersedeas may 1075, S. C. 

be sold afieiwards; Cro. Eliz. 597. (x) See note, 1 Saund. 219 a. See 

(r) See aiife, 98. also Ward v. Thomas, 2 Dowl. 87; 

(s) See Boolhmani). Earl of Surrey, 1 C. & M. 537, S. C. 

2T. R. 10; 27Hen. 8, c. 24. ' (y) Rock D.Leighton, 1 Balk. 310; 

(t) Midmayy. Smith, 2 Saund. 343; 1 Ld. Raym. 590, S. C. ; Com. Rep. 

2 Keb. 789, 821, S. C. See also May 87, cited in 3 T. R. 692. 
V. Proby, Cro. Jac. 419; 3 Bulstr. 



294 



SHERIFF S DUTIES IN THE EXECUTION OF A FIERI FACIAS. 



CHAP. X. 
SECT. VII. 



Against a 
clergyman. 



turn (;::;). And whetlier the devastavit be returned by the sheriff 
- to the ^eri facias, or found by the inquisition on the Jieri inquiry, 
the return is not conclusive, but the executor may taverse the 
devastavit (a). 

On aji.fa. against a beneficed clergyman, if he have no goods, 
the sheriff, in addition to a return of nulla bona, should return 
that the defendant is a beneficed clerk, and has no lay fee in 
his bailiwick (6), upon which a Jieri or levari facias goes to the 
bishop of the diocese where the benefice, is, commanding him to 
levy the sum recovered, of the ecclesiastical goods of the de- 
fendant (c). The levari facias does not begin to operate until 
the writ of sequestration is published (t/). As against the de- 
fendant, the property is bound from the time when the seques- 
trator is appointed (e). It is not necessary to publish the writ 
of sequestration before the return day of the levari facias (/). 
The bishop is liable to be ruled to return this writ (g), or to an 
action for a false return thereto (h). This writ is a continuing 
execution ; and the bishop should take all the profits of the 
benefice up to the time when the writ is actually returned, 
although after the return-day of the writ(i). To this writ the 
bishop must return feri or levari feci, and not sequestrari feci (k). 
The bishop may be ruled from time to time to return what he 
has levied (/) ; but he cannot be ruled to make a return of what 
has been levied before he came into oflSce (m) : and when a 
bishop grants a sequestration against the effects of a clergy- 
man within his diocese, he stands in the same situation as a 
sheriff", and the court has the same power over him as over the 
sheriff" (n). A defendant has no right to have the levari facias 

(s) Rockv.Leighton, 1 Salk.310; 
1 Ld. Raym. 590, S. C. ; Com. Rep. 
87, cited in 3 T. R. 692; 1 Saund. 
219 c. 

(a) Gibson ?;. Brook, Cro.Eliz. 859; 
Mounson v. Bourne, Sir W. Jones, 418. 

(b) See this return, Append, c. 10, 
s. 7. 

(c) Bac. Abr. Execution (G) 6. 
See form, Tidd's Forms, 436 ; Arch- 
bold's Forms, 514. 

(d) Wait V. Bishop, 3 Dowl. 234 ; 
1 C. M. & R. 507, S. C. 

(e) Bennett v. Apperley, 6 B & C. 
630, per Barley, J. 

(/) Ibid. 

{g) Lanquily. Jones, Stra. 87; Rex 



V. Bishop of London, 1 Dowl. & Ry. 
486. 

(A) Pickard D. Paiton, 1 Sid. 276 ; 
Moseley v. Warburton, 1 Saik. 320; 
1 Ld. Kaym.265, S. C. 

(i) Marsh v. Fawcett, 2 H. Blac. 
582. 

(k) See 1 Mod. 257 ; 2 Mod, 259, 
and Tidd's Prac. 1063, 1064, 8th ed. 
for the mode in which the bishop is to 
execute this writ. 

(/) See 2 H. Blac. 583. 

(m) Phillips V, Berkeley, 5 Dowl. 
279. 

(n) Rex V. Bishop of London, 1 
Dowl. & Ry. 486. 



RETURN. 



295 



returned, but he may have a return of the amount of profits chap. x. 

received by the sequestrator (r). The bishop's return should, ' '. 

it seems, be verified, and it will not be sufficient merely to set 
forth the debtor and creditor account of the sequestrator (*). 
The bishop should not return the writ of sequestration until 
after the execution is fully satisfied ; if he returns it previously, 
the court will direct it to be taken off the file and sent back to 
the bishop in order that he may certify what he has done under 
it, and take the return off the writ(i). The sequestrator of a 
benefice is the mere agent of the bisho]i, and has not himself 
any such interest as will enable him to maintain an action at 
law against a pei'son who wrongfully receives the profits of the 
benefice (m). 



Section VIII. 
Actions against the Sheriff for Breach of Duty. 
If the sheriff return _^m/bd, the plaintiff may proceed for the Remedy for 

1 1 • rr- ■ 1 1 • n % 1 /^ 11 the amount 

money agamst the sheriii, either by action of debt, founded on levied, 
the return (a-), or by action for money had and received (//), or 
by rule of court (2). Although no return be made, an action 
for money had and received will lie against the sheriff for the 
amount levied («). In bringing an action for money had and 
received, to recover money levied on ?ifi.fa., it is not necessary 
to prove a demand of the money before action brought (&). 
Although if the plaintiff commence an action against the sheriff 
for money levied by him, without previously demanding the 
same, the court will stay proceedings on payment of that sum 

(r) llart w. Vollans, 1 Dowl. 434. 2 Mod. 212; 2 Show. 79, S. C; 1 

(s) ElchiD V. Hopkins, 7 Dowl. Mod. 245; Freem. 236. 

146. (v) Dale v. Birch, 3 Camp. 347. 

(t) Aldeiton v. St. Aubjn, 6 M. If the sheriff claim by his return to 

& VV. 150. retain money, to which he is not en- 

(11) Harding v. Hall, 10 M. & W. titled, the plaintiff may recover that 

42. money from the sheriff in such an 

{x) Parkinson t). Gifford, Cro. Car, action; Longvile v. Jones, 1 Stark. 

539 ; Speake v. Richards, Hob. 206. 345. 

In an action of debt founded on the (s) See Stockdale v. Hansard, 11 

sheriff's return to a fieri facias, nil Ad. & E. 253. 

debet is not a good plea, for the return (u) Parkinson v. Gifford, Cro. Car. 

is parcel of the record ; 2 Saund. 344, 539 ; Sir W, Jones, 430, S. C. ; Mor- 

n. (2;. So, for the same reason, the land v. Pellatt, 8 B. & C. 722. 

Statute of Limitations is not a good (6) Dale v. Birch, 3 Camp. 347. 
plea to that action ; Cockram v. Welby, 



296 



SIIEUIFF S DUTIES IN THE EXECUTION OF A FIERI FACIAS. 



CHAP. X. witliout costs ; for the court will always protect the sheriff 
SECT. VIII. ^y|^gj.g jjg jjj,jg ^yjfjj „QQf\ faith Cc). If the assignees of the de- 
fendant, who has become a bankrupt, claim the money of the 
sheriff, it is competent for him, in an action brought by the 
plaintiff for the money, to show that the assignees are entitled 
to it(<^/); and he may, in an action of trover, set up such defence 
under a plea of not possessed (e). 

It seems that the application for a rule calling on the sheriff 
to pay over the amount levied should be made to the court, and 
not to a judge at chambers (/). 

It would not, it seems, in any case be an answer to a rule 
nisi, for paying over the money levied, to say that a superior force 
had prevented the sheriff from bringing into court money which 
he had levied (g) ; and it has been held that it is no answer to 
such a rule to say that the House of Commons, by resolutions 
subsequent to the granting of the rule nisi, declared the levy 
to be a contempt of the privilege of the House, and ordered 
the sheriff to refund the money levied to the defendant, and 
committed the sheriff for contempt (A). Nor would the pen- 
dency of a conflicting rule in another court, whereby the sheriff 
was ordered to retain the money, and to show cause why he 
should not pay it over to a third party, e. g. to the provisional 
assignee of an insolvent, afford any answer to such a rule, 
because the court, in directing the sheriff to pay the amount of 
the levy over to the plaintiff, would take care to protect the 
interests of the parties who might prove to be really inter- 
ested (i). 

Where money was in the hands of the accountant-general in 
bankruptcy, and the sheriffs of London returned to an extent 
that they had seized the amount directed to be levied into the 
hands of the queen, the court made absolute a rule for paying 
over the money, and refused to make the accountant-general a 
party to the rule (k) ; but the court afterwards discharged the 
rule and allowed the sheriffs to amend their return, it appearing 

(c) Jeflferies v. Sheppard, 2 Bar.& (/) See per Patteson, J., Stock- 
Aid. 696. See also 3 Camp. 347. dale v. Hansard, 11 Ad. & E. 263. 

(d) See 6 M. & Sel. 42 ; 2 Camp, (g) Stockdale v. Hansard, 1 1 Ad. 
452; 6 Taunt. 490; 2 Marsh. 186, & E. 253. 

S. C. (h) Ibid. 

(e) Leake v. Loveday, 4 M. & G. ((' ) Ibid. 

972. (k) Reg. V. Austin, 1 Dowl. N. S. 

666. 



ACTIONS AGAINST THE SHERIFF FOR BREACH OF DUTY. 297 

that the Court of Review had refused to order the accountant- chap, x. 
general to pay over the money to the sheriffs (Z). If the sheriff sect, vm. 
disobeys the rule for paying over the money, an attachment will 
lie against him, but the rule for such attachment will be nisi 
only in the first instance (w). 

It will be no answer to a rule nisi for an attachment to show 
that the sheriff is in personal confinement, and cannot obey the 
rule, except by directing his officers to do so, who, if they 
obeyed him, would probably incur imprisonment themselves (?i). 
But although the sheriff has returned that he has levied the 
debt, yet the courts will not grant a rule for the sheriff to pay 
over the money levied, if it appear there has been any collusion 
between the plaintiff and the officer (o). In a recent case, 
where the money had been paid to the assignees of the defend- 
ant, who had become bankrupt, and the plaintiff, knowing of 
such payment, had lain by for some time, without making any 
objection to it, the Court of Common Pleas refused to grant a 
rule on the sheriff to pay over the money to the plaintiff (p). 
And the court will not grant a rule to pay over the proceeds of 
a levy to a bond fide execution creditor, upon the ground that 
the levy was made under afi.fa. issued for the fraudulent pur- 
pose of defeating the execution of such bond fide creditor (^r). 

If the return of the sheriff be false, an action on the case ^^.^\^^ return : 
may be maintained against him at the suit of the person dam- ^uchTc'iton, 
nified by such false return (r). But this action will not lie unless *''"• 
actual damage occurs to the plaintiff (*). Or the sheriff may 
be amerced for such false return, according to an ordinance 
against sheriffs (/). But he is not liable to an action until he 
has made his return (?<). Nor is he liable to an action for a 
false return to 2t.fi. fa. issued out of his county court (a;). The 
court will not try the truth or falsity of a return upon affida- 

(/) Reg. V. Austin, 10 M. & W. (9) Barber v. Mitchell, 2 Dowl. 

188 ; 2 Dowl, N. S, 468, 574, 

(to) Hatfield i;, Hatherfield, 1 Dowl, (r) Cora, Dig, Retorn (F2). 

& L. 809. (s) Wylie v. Birch, 4 Q. B. 566. 

(rt) Stockdale v. Hansard, 11 Ad. (f) Com. Dig, Retorn (F2), citing 

&E. 269, East, 272 a. By stat. 28 Edw, 1, 

(0) Ruston V. Hatfield, 3 Bar. & c. 16. 

Aid. 204: 1 Chit, Rep. 613, S. C. (u) Moreland r. Leigh, 1 Stark. 

See also Porter v. Viner, xh. n.; Pal- N. P, C, 388, 

lister V. Pallister, xh. 614, n. (x) Pitcher v. King, 9 Ad. & E. 

(/)") Tomlinson v. Shynn, 2 Brod. 288. 
& Bing, 77, 



/i98 sheriff's duties in the execution of a fieri facias. 



SECT. VIII. 



CHAP. X. vit(y). IMiiis if the sIierifF return that lie has seized goods 
which remain in his hands for want of buyers, where a price 
has been offered for the goods, although not equal to their full 
value, he is liable to an action for a false return (s). But if, 
after such a return, the defendant become bankrupt on an act 
of bankruptcy committed before the seizure, it is competent for 
the sheriff to show this as an answer to an action for not selling 
the goods on a venditioni exponas (a) ; but where the sheriff re- 
turned^en/eci, after having received notice that the defendant 
had petitioned the Insolvent Court, he was held bound by his 
return (i). If the sheriff returns that he has levied part of the 
debt, and that the defendant has no goods whereof the residue 
can be levied, the creditor, by accepting the amount levied on 
account of his debt, does not preclude himself from bringing 
an action for a false return (c). The declaration in an action 
for a false return must either show special damage to the plain- 
tiff, or must disclose facts from which the law would necessarily 
infer such damage (<i). It is no answer to an action for a false 
return to say that, after the return, the plaintiff brought an 
action of debt and obtained a judgment on the original judg- 
ment (e). 

In an action for a false return of nulla bona to a writ of 
Jieri facias, the sheriff cannot give in evidence, even in mitiga- 
tion of damages, an inquisition held by him to inquire whether 
the property in the goods be in the defendant or not(/). If the 
sheriff make a return of 7mlla bona, after having taken goods as 
the goods of the defendant in execution, a person who claims 
property in the goods, and who has taken them out of the hands 
of the sheriff, is a competent witness, in an action against the 
sheriff for a false return, to prove his property in the goods ; 
for the sheriff, after his return of nulla bona, cannot maintain 
an action against him, having disclaimed all interest in the goods, 
and being precluded by his return (g-). If the sheriff return to 

(y) Goubot V. De Crouy, 2 Dowl. (c) Holmes v. Clifton, 10 A. & E. 

86. 673, overruling Beynon v. Garrat, 1 

(s) Barnard v. Leigh, 1 Stark. 43. C. & P. 154. 

Sed qucere, et vide Keightley v. Birch, (d) Wylie v. Birch, 4 Q. B. 566. 

3 Camp. 521. (e) Pitcher v. King, 9 Ad. & E. 

(a) Bridges v. Walford, 6 M. & Sel. 288. 

42. (/) Glossop V. Pole, 3 M. & Sel. 

(h) Field v. Smith, 2 M. & W. 175. 

388. (g) Thomas i;.Pearse, 5 Price, 547 



ACTIONS AGAINST THE SHERIFF FOR BREACH OF DUTY. 299 



SECT. VIII. 



a writ oi fieri facias, that he has levied a certain sum, out of chap 
which he has paid a part to the landlord of the premises for . 
arrears of rent, it will be incumbent upon him, in an action 
against him for a false return, to prove the fact of the rent 
being in arrear(/i). When the sheriff defends his return of milla 
bona on the ground that the person against whom the writ 
issued was the domestic servant of an ambassador of a foreign 
state, it is competent for the plaintiff to prove the appointment 
colourable and fraudulent (J). In the declaration in an action 
for a false return, the judgment and the writ must be stated and 
proved in evidence, if denied by the pleas. A variance in a 
material point between the allegation and proof, in either of 
those particulars, will be fatal. What is held to be a fatal 
variance in such case has already been considered in treating 
of the action for an escape (k). Where the declaration bore 
date after the accession of Queen Victoria, and alleged the 
recovery of a judgment in the reign of the late king, as appeared 
by the record " still remaining in the said court of our said 
lord the king, &c." it was held no variance on motion for judg- 
ment on production of the record (I). 

The plea of not guilty, since the rule of H. T. 4 Will. 4, 
puts in issue merely the breach of duty, admitting the matters 
stated in the inducement to be true, and therefore under such 
a plea it will not be competent for the defendant to go into 
evidence to prove the truth of the return. Thus, in an ac- 
tion against the sheriff for a false return of nulla bona to a 
writ of ^. fa., after having levied under it, the plea of not 
guilty puts in issue only the fact of the sheriff having made 
the levy, and the making the return stated in the declara- 
tion ; and under such a plea the defendant is not at liberty to 
show that the goods levied were not the goods of the original 

See also Ward v. Wilkinson, 4 Bar. questions which sheriflTs in the exe- 

& Aid. 410; Bland u. Ansley, 2 N. cution of process must determine at 

R. 331. their own peril. In cases of real dif- 

{h) Keightley r. Birch, 3 Camp. ficulty they may call for an indemnity, 

521. Slight evidence of this fact and the court will enlarge the time for 

would be sufficient in such case on their making their return till an in- 

the part of the sheriff; the landlord demnity be given." Per Lord Ellen- 

himself in such case is not a compe- borough, C.J. Id. ibid. 

tent witness; Id. ibid. {k) See ante, 209. 

(i) Delvalle v. Plomer, 3 Camp. (/) Lewis j;. Alcock, 6 Dovvl. 78. 
47. " This is one among many other 



300 sheriff's duties in the execution of a fieri fa. IAS. 



SECT 



CHAP. X. defendant, because he had become a bankrupt (ni). So where 
- a declaration against the sheriff for a false return stated the 
delivery of tlie Ji. fa. to the defendant, and alleged that though 
there were goods within his bailiwick which he ought to have 
levied, yet he neglected to levy, and afterwards falsely returned 
nulla bona, it was held that, under the plea of not guilty, it 
could not be shown that the execution debtor had assigned over 
his goods to a third party, because the plea of not guilty only 
puts in issue the breach of duty ; and the statement of the delivery 
of the writ to the sheriff, and that there were goods of the debtor 
within his bailiwick, were mere matters of inducement (?i). 

In an action for a false return of nulla bona, alleging a seizure 
of the debtor's goods under the writ, under a plea denying that 
the defendant seized the debtor's goods under the writ, it may 
be shown that the goods were not the goods of the debtor, but 
of his assignees (o). To a declaration alleging that the sheriff 
(the defendant) seized goods of the debtor under a fi. fa. to the 
value of the amount indorsed thereon, " and then levied the 
same thereout," but falsely returned nulla bona, a plea traversing 
the allegation that the sheriff had levied the amount indorsed 
on the plaintiff's writ, raises the whole question whether the 
defendant has raised by sale of the goods seized monies appli- 
cable to the jilaintiff's writ, involving three issues : — 1st, whe- 
ther the goods were sold at all ; 2nd, whether they were sold 
under the plaintiff's writ ; and, 3rd, whether the proceeds were 
applicable to the plaintiff's writ. And therefore, under such 
a traverse, the defendant may show that the proceeds of the 
sale of the goods were all applicable to, and were swallowed 
up by, other writs of execution which had priority over the 
plaintiff's ; and a plea setting forth such facts specially was 
held bad, as being argumentative (p ). To a similar decla- 
ration, under a plea denying that the debtor had any goods 
within the defendant's bailiwick whereof he could cause to 
be levied the amount indorsed on the writ, it was held that 
the defendant was at liberty to show that the proceeds of the 



(m) Wright v. Lainson, 2 M. & W. (o) Wright v. Lainson, 3 M. & W. 

739. 44 ; Rowe v. Ames, 6 M. & W. 747. 

(7i) Lewis V. Alcock, 3 M. & W. (p) Drewe v. Lainson, 11 Ad. & E. 

188; 6 Dovvl. 389, S. C. 529. 



ACTIONS AGAINST THE SHERIFF FOR BREACH OF DUTY. 



SOI 



goods which were seized under the plaintiff's writ w-ere ex- chap. x. 
hausted by payment of a year's rent to the landlord under the ' 

statute of Anne, and in part satisfaction of another execution 
which was entitled to priority over the plaintiff's (q). So where 
to a similar declaration the defendant pleaded that the defendant 
did not seize or take in execution any goods of the debtor, or 
levy thereout the money indorsed modo et forma, it appearing 
on the trial that the goods seized under the plaintiff's writ were 
insufficient to satisfy a prior execution delivered to the sheriff, 
the defendant was held to be entitled to a verdict, notwithstand- 
ing the plaintiff proved that the goods were seized under a war- 
rant granted upon his writ (r). In answer to such a defence, 
the plaintiff may show that such prior execution was founded 
on a fraudulent judgment, without showing the sheriff to be a 
party to such fraud (5). 

In an action for neglecting to seize goods under a fi. fa., and 
returning mdla bona under a plea denying that there were any 
goods of the debtor within the sheriff's bailiwick modo et forma, 
it may be shown, that although there were goods of the debtor 
within the bailiwick, yet that such goods were not applicable to 
the plaintiff's writ(i). The defendant cannot plead that he 
did not seize and levy, for such a plea would raise too large an 
issue, because either a seizure or levy would be sufficient to 
support the plaintiff's action (m). Where to a ji. fa. the sheriff 
returned that he had seized goods which remained in his hands 
for want of buyers, upon which an action was brought as for a 
false return, the court refused to allow the return to be amended 
to mdla bona after the sheriff had obtained an order for time 
to plead on the usual terms (a;). 

Where the declaration discloses a state of facts from which 
the law would presume damage to the plaintiff, the defendant 
is at liberty to plead pleas showing that in fact no damage ac- 
crued to him. Thus where the declaration alleged a seizure 
and sale under a fi. fa., and a false return that the goods re- 
mained in defendant's hands for want of buyers, it was held 

(q) Wintle V. Freeman, 1 1 A. & E. (t) Heenan v. Evans, 3 Man. & G. 

539. 398. 

(r) Heenan D. Evans, 3 Man. & G. (m) Stubbs v. Lainson, 1 M. & W. 

398. 728; 5 Dowl. 162, S. C. 

(s) Imiay i'. Magnay, 11 M. & W. (x) Wylie v. Pearson, 1 Dowl. N. 

267 ; 2 Dowl. N. S. 531. S. 807. 



302 sheriff's duties in the execution of a fieri facias. 

CHAP. X. that pleas showing that the ji.fa. was issued on a judgment on 
! 1 a warrant of attorney, and that the debtor had become bank- 
rupt, and alleging such facts as would render the execution in- 
valid as against his assignees, were good as negativing any damage 
to the plaintiff from the false return ; and it was also held that 
such pleas did not amount to the general issue (?/). 
Wrongful Where the sheriff or his officer, on a ji. fa. against the goods 
of A., takes the goods of B., the sheriff is subject to an action 
of trespass (2;). To such an action, under a plea of not pos- 
sessed, the sheriff may show that the plaintiff took the goods 
under an assignment by the debtor, fraudulent as against the 
execution (a). Or if the officer seize the goods of the defend- 
ant after the return day of the writ (6), or after a supersedeas 
has been delivered to the undersheriff(c"), or after the sheriff 
has received orders from the plaintiff not to execute the writ(c?), 
or if he take them at any place out of his county (e), the sheriff 
and his officers are liable to an action of trespass. If the sheriff 
break open the outer door of a house to take the defendant's 
goods, he is a trespasser (/). For the requisites of a plea of 
justification by a sheriff, for any thing done by him in exe- 
cuting a writ of ^. fa., it is sufficient to refer the reader to a 
former part of this work (^). In an action of trespass against 
the sheriff for a wrongful seizure of goods, the jury may give 
what damages they please, and are not bound to the amount for 
which the goods were afterwards sold (A). 
Actions by The sheriff, we have seen, has such a special property in 
goods taken by him upon a fi. fa. as to enable him to maintain 
trespass or trover against a wrong-doer (?). So, if goods law- 
fully taken by the sheriff be rescued out of his possession, he 

(y) Wylie v. Birch, 4 Q. B. 566. (rf) Barker v. St, Quintin, 12M.6e 

Qiudre, whether these pleas did not W. 441 ; 1 Dowl. & L. 542, S. C. ; 

amount to an argumentative traverse Hunt u. Hooper, 12 ]M. & W. 672 ; 1 

that the sheriff had sold the goods of Dowl. & L. 628, S. C. -per Parke, B. 

the debtor. (e) Tyler v. Johnson, cited by 

{z) Saunderson D. Baker, 2 Bla. R. Nares, J. in 3 Wils. 317,and in2 Bla. 

832 ; 3 Wils. 309, S. C. See also Rep. 834. 

Laicock's case, Latch, 187. (/) See anie, 75. 

(a) Ashby v. Minelt, 8 Ad. & E. {g) See anie, 122. 

121. Oi) Lockley (>.Pye,8M.& W.133. 

(6) Ellis 1). Jackson, 1 Lev. 143; (i) Wilbraham v. Snow, 2 Saund. 

1 Sid. 229, S. C. ; 1 Keb. 718, 805; 47 ; 1 Vent. 52, S.C. ; 1 Lev. 282 ; 

2 Roll. Abr. 278. 1 Sid. 438, S. P. ; Clerk v. Withers, 
(c) Prinejj. Allington, Moor, 677, 6 Mod. 292. 

pi. 921. 



ACTIONS BY THE SHERIFF. 303 

may bring an action on the case against the rescuers ; but it is chap. x. 
a good defence to such action, that the goods had been fraudu- sect, vm. 
lently obtained by the defendant (k). If the sheriff seize and 
sell the goods of the defendant, and pay the proceeds over to 
the plaintiff, and the sheriff be afterwards sued in trover by the 
assignees of the defendant, who had committed an act of bank- 
ruptcy before the seizure, and a verdict pass against the sheriff, 
he may maintain an action for money paid against the plaintiff 
to recover the proceeds of the sale ; but there is no implied 
contract for the plaintiff to indemnify the sheriff against the 
costs of that action (l). If in such case the sheriff, after having 
called upon the plaintiff to defend an action of trover com- 
menced by the assignees, allow judgment to go by default, it is 
still open, in an action by the sheriff against the plaintiff, brought 
to recover back the money paid to him, for the plaintiff to show 
that the defendant had not become bankrupt (??«). If the sheriff 
took any indemnity on releasing the goods, or on paying the 
money to the plaintiff, the sheriff, if he have been damnified, 
may put such security in suit for his indemnity. 

Where, goods having been seized by the sheriff under afi.fa., 
the officer, by arrangement between the debtor and the cre- 
ditor, and without the knowledge of the sheriff, quitted posses- 
sion upon the understanding that he might return at any time 
and sell ; and he accordingly, after the lapse of some time, did 
return, and notice of sale was given ; but before the sale, an- 
other Ji. fa. at the suit of another creditor was lodged, to which 
the sheriff returned nulla bona, and paid over the proceeds of 
the sale to the first execution creditor: it was held that the 
sheriff, having been compelled to answer in damages for a false 
return to the second writ, to the amount of the money levied, 
upon the ground of the officer having quitted possession, as 
above mentioned, might, in an action for money had and re- 
ceived, recover back from the first execution creditor the amount 

(fc) Wilsmore v. Earl of Bristol, 1 or not there is an implied promise by 

Barn. & Cress. 514 ; 2 Dowl. & Ry. the sheriff to indemnify a person em- 

755, S. C. ployed by him to conduct the sale of 

(/) Wilson V. Wilner, 2 Campb. goods seized, where it turns out that 

452. the goods were not the goods of the 

(m) Austin, v. Ward, 1 Car. & P. defendant ; Farebrother v. Simons, 1 

370, 507; 1 Ry. & Mo. 116, S. C. Carapb. 345. 
It does not appear to be clear whether 



304 sheriff's duties in the execution of a fieri facias. 

CHAP. X. which, in ignorance of the facts, he had so paid over to him (n). 

SECT. VIII. Where a sheriff's officer, in consequence of a false represent- 
ation made to him, settled, out of his own money, an action 
against the sheriff, it was held that the sheriff might, on behalf 
of the officer, sue the party who made such representation (o). 

(h) Crowder v. Long, 8 Barn. & (o) Evans v. Collins, 5 Q. B. 804, 

Cress. 598. 820. 



( 305 ) 



CHAPTER XI. 



ELEGIT. 



Of the nature of the Writ. — What may he taken under it. — How 
executed. — Lands and Goods how delivered. — Return. — Pound- 
age. — Sheriff's Liability. — Restitution. 

At the common law, the only writ of execution against the lands 
of the defendant was a writ of levari facias, but this writ, ex- 
cepting in case of outlawry, is entirely superseded by the writ 
of elegit (a). The writ o^ elegit is a writ of execution (&), 
founded on the statute of Westm. 2 (13 Edw. 1, c. 18), by 
•which it is enacted, that "when a debt is recovered or acknow- 
ledged in the king's court, or damages awarded, it shall be in 
the election of him who sues for such debt or damages to have 
a writ o^ fieri facias to the sheriff, for levying the debt upon the 



(a) See ante, 232, as lo the writ of 
levari facias and what may be taken 
under it. 

(b) This writ is called an elegit, 
because the plaintiff or conusee has 
made his election to sue out execution 
of the land itself, which is given by 
the above-mentioned statute, instead 
of the common law executions; and 
the words in the entry of the award 
of this writ are, "chme to he delivered 
to him all the goods, &;c." After 
lands are extended on an elegit, the 
plaintiff cannot sue out any other 
writ of execution, for this is deemed 
satisfaction ; Crawley v. Lidgent, 
Cro. Jac. 338. Indeed, it was for- 
merly considered that the mere entry 
of an award of an elegit on the roll 
barred the plaintiff from resorting to 
any other writ of execution ; but now 
only tlie sheriff's return, that he had 
delivered land according to the exi- 
gence of the writ, is a bar to a ca. sa. 
or a Ji. fa. j Foster v. Jackson, Hob. 



57, 58 ; Glasscock v. Morgan, 1 Lev. 
92; 2 Lord Kaym, 1451; 12 Alod. 
356, 357. And now either of those 
writs may issue, if the sheriff returns 
nihil to an elegit ; Knowles v. Palmer, 
Cro. Eliz. 160: or if lands be ex- 
tended, but cannot be made available 
to the purposes of the writ ; Palmer v. 
Knowles, 1 Leon. 176; 1 Rol. Abr. 
905, pi. 6. So if part of the debt be 
levied on an elegit on the goods of llie 
defendant, the plaintiff may have a 
fresh execution, or debt on judgment 
for the residue ; Hesse v. Stevenson, 
1 N.Il. 133; Bacon v. Peck, 1 Str. 
226. It is said that an elegit may be 
issued after a year, without a scire 
facias, merely upon entering an award 
of elegit upon the roll wilhm the year, 
and continuing it by vicecomes mm 
miiit breve to the time of suing out the 
writ; Seymour v. Greenvill, Carth. 
2B3 ; sed qumre, and see 2 Saund. 
68 c; Tidds Pract. 1136. 



306 . ELEGIT, 

CHAP. XI. lands and chattels, or that the sheriff deliver to liim all the 
chattels of the debtor (saving only his oxen and beasts of the 
plough), and a moiety of his land, until the debt be levied, by a 
reasonable price or extent ; and if he be evicted, he shall re- 
cover by writ of novel disseisin, and afterwards by writ of re- 
disseisin, if there be occasion." 

By statute 1 & 2 Vict. c. 110, s. 11, it is enacted, "that it 
shall be lawful for the sheriff or other officer to whom any writ of 
elegit, or any precept in pursuance thereof, shall be directed, at 
the suit of any person, upon any judgment which, at the time 
appointed for the commencement of this act, shall have been 
recovered, or shall be thereafter recovered, in any action in any 
of her majesty's superior courts at Westminster, to make and 
deliver execution unto the party in that behalf suing of all such 
lands, tenements, rectories, tithes, rents and hereditaments, 
including lands and hereditaments of copyhold or customary 
tenure, as the person against whom execution is so sued, or any 
person in trust for him, shall have been seised or possessed of 
at the time of entering up the said judgment, or at any time 
afterwards, or over which such person shall at the time of 
entering up such judgment, or at any time afterwards, have any 
disposing power which he might, without tlie assent of any other 
person, exercise for his own benefit, in like manner as the 
sheriff or other officer may now make and deliver execution of 
one moiety of the lands and tenements of any person against 
whom a writ of elegit is sued out ; which lands, tenements, 
rectories, tithes, rents and hereditaments, by force and virtue of 
such execution, shall accordingly be held and enjoyed by the 
party to whom such execution shall be so made and delivered, 
subject to sucli account in the court out of which such execution 
shall have been sued out as a tenant by elegit is now subject to 
in a court of equity: provided always, that such party suing out 
execution, and to whom any copyhold or customary lands shall 
be so delivered in execution, shall be liable and is hereby 
required to make, perform, and render to the lord of the manor, 
or other person entitled, all such and the like payments and 
services as the person against whom such execution shall be 
issued would have been bound to make, perform, and render in 
case such execution had not issued ; and that the party so suing 



ELEGIT. 307 

out such execution, and to whom any such copyhold or customary chap. xi. 
lands shall have been so delivered in execution, shall be entitled 
to hold the same until the amount of such payments, and the 
value of such services, as well as the amount of the judgment, 
shall have been levied ; provided also, that as against purchasers, 
mortgagees or creditors, who shall have become such before the 
time appointed for the commencement of this act, such writ of 
elegit shall have no greater or other effect than a writ of elegit 
would have had in case this act had not passed." 

By the writ of elegit the sheriff is commanded (c) " that 
without delay he cause to be delivered to the plaintiff, by a 
reasonable price and extent (d), all the goods and chattels of the 
said defendant in his bailiwick (except his oxen and beasts of 
the plough), and also all such lands and tenements, rectories, 
tithes, rents and hereditaments, including lands and heredita- 
ments of copyhold or customary tenure, in the sheriff's bailiwick, 
as the defendant, or any person in trust for him, was seised or 
possessed of on the day the judgment was obtained, or at any 
time afterwards, or over which the defendant had any dis- 
posing power which he might, without the assent of any other 
person, exercise for his own benefit, to hold the said goods and 
chattels as his proper goods and chattels, and to hold the said 
lands, tenements, rectories, tithes, rents and hereditaments re- 
spectively, according to the nature and tenure thereof, to him 
and to his assigns until the debt and damages, together with 
interest, be thereof levied." 

The writ of elegit cannot be sued out for j;ar^ only of the 
sum recovered by the judgment, unless it shows on the face of 
it that the residue of the judgment has been satisfied or other- 
wise disposed of (e). 

The sheriff's duty on an elegit is, in the first instance, to whai goods 
take the goods of the defendant (excepting oxen and beasts of uken.'and 
the plough), and deliver them to the plaintiff at the price found ''°"' '"^'*' 
by a jury, to be summoned as hereafter mentioned. Whatever 

(c) See form of writ framed by the "extent," to the defendant's lands; 
judges pursuant to 1 & 2 Vict. c. 110, Palmer's case, 4 Rep. 74 b; 2 Inst. 
H. T. 2 Vict. Append. 396. 

(d) The word "price," mentioned (e) Sherwood v. Clark, 15 M. & 
in the statute, is referrable to the de- W. 764 ; see Webber v. Hutchins, 8 
fendant's goods and chaUels; and M. & W. 319. 



308 ELEGIT. 

CHAP. XI. may be taken as goods and chattels under a fieri facias may be 
taken under this part of the writ of elegit, and no more(y"). 
A term of years may either be extended at an extended annual 
value, as part of the lands of the defendant ; or it may be 
delivered to the plaintiff, as part of the defendant's chattel pro- 
perty, the jury having first appraised it at the gross sum {g). 
The landlord is entitled to a year's rent under the statute of 
Anne, where goods are taken on an elegit, in like manner as 
where goods are taken on a fi.fa. (Ji). But in one respect this 
writ differs from 2i fi.fa., for instead of selling the goods as on 
?i fi.fa., and bringing the money into court, it is the duty of the 
sheriff to deliver the goods to the plaintiff at the value found by 
the jury (i). 
What lands If the chattels taken be sufficient to satisfy the debt, then the 

may be *' 

taken atui sheriff oucrht not to extend the landi'A;), But if the goods be 

wliat not. rr. • 1 1 . • 

not sufficient, the lands, after being valued by the jury, must 
be set out by metes and bounds, and delivered to the plaintiff. 
Whatever land the defendant had at the time the judgment was 
entered up is liable to be extended on an elegit (f). All lands of 
the defendant are liable to be extended, whether he has an estate 
in fee, in tail, for life, or for years ; but formerly, before the stat. 
1 & 2 Vict., c. 110, copyhold lands (in), or a lease of copyhold 
lands, were not extendible on an elegit (n), as part of the realty. 
But lands held in ancient demesne might be extended and de- 
livered over on an elegit (o). Although the word " lands " is 
used in the statute, yet whatever comes under the legal defi- 
nition of a tenement was always extendible on an elegit, as a 
reversion (p), or a rent charge (y). But a rent seck(r), or an 

(/) SeeaHfe, 249. Ry. 603 3 1 Roll. Abr. 8883 3 Rep. 

(^) 2 Inst. 395; Fleetwood's case, 9. 

8 Rep. 171 ; Dalt. 137. (n) 1 Roll. Abr. 888. 

{h) See onte, 274. (0) Cox v. Barnsley, Hob. 47; 

(i) Per Holt, C.J., 1 Ld. Raym. Moore, 211 ; 2 Inst. 397; 1 Roll. Abr. 

346. And therefore if a term be taken 888, 1, 5. 

upon an e/eg-if, and judgment be after- (p) Gilb. Execution, 38 ; Bishop 

wards reversed, the termor shall be re- of Biistol's case, 2 Leon. 113; 1 Roll. 

stored to his term, and not to the value Abr. 894, 1. 5; Mayor of Poole v. 

of it;Goodyerei'.Ioce, Cro. Jac. 246; VVhilt, 15M. & \V.571. 

Bathurst's case, Dyer, 363, in marg. (0) Bro. Elegit, 13; Moore, 32; 

{k) 2 Inst. 395. Wotton v. Shirt, Cro. Eliz. 742. 

(/) 2 Inst. 395; stat. 29 Car. 2, c. (r) VValsal v. Heath, Cro. Eliz. 

3, ss. 14, 15, 18. 656; 3 Rep. 9. 

(w) Morris v. Jones, 3 Dowl. & 



ELEGIT. 309 

office, as that of filazer, were not extendible on an elegit (5) ; chap. xr. 
an office is not extendible, because it cannot be granted over. 
Lands which the defendant hath by extent upon a statute are 
liable to be taken upon an elegit {t). But lands of which the 
defendant is disseised, in the hands of the deissor, are not liable 
to be taken on an elegit («). Neither is an advowson in gross (a:), 
because a moiety of it could not be set out, nor can it be valued 
at any certain rent towards payment of the debts ; nor the glebe 
of a parsonage or vicarage ; nor can a church -yard be extended 
upon an elegit (y), although it is said that the lands of a bishop 
may be extended (z). So may the lands which a husband has 
in right of his wife (a). 

Before the passing of the statute of 29 Car. 2, c. 3, lands 
held in trust for the defendant could not be extended upon an 
elegit, issued on a judgment, statute, or recognizance of the 
cestui que trust. But by the 10th section of that act it is enacted, 
that " it shall be lawful for every sheriff or other officer, to 
whom any writ or precept is directed, at the suit of any person 
or persons, of, for and upon any judgment, statute, or recogni- 
zance, thereafter to be made or had, to do, make and deliver 
execution unto the party in that behalf suing of all such lands, 
tenements, rectories, tithes, rents, hereditaments, as any other 
person or persons are in any manner seised or possessed in 
trust for him against whom execution is so sued, like as the 
sheriff or other officer might or ought to have done if the said 
party against whom execution is so sued had been seised of 
such lands, &c., of such estate as they are seised of in trust for 
him at the time of the said execution sued ; which lands, &c., by 
force and virtue of such execution, shall accordingly be held 
and enjoyed freed and discharged from all incumbrances of 
such person or persons as shall be so seised or possessed in 
trust for the person against whom such execution shall be sued; 
and if any cestui que trust shall die, leaving a trust in fee simple 
to descend to his heir, then and in every such case such trust 
shall be deemed and taken, and is thereby declared to be, assets 

(s) Dyer, 7 b. (v) Gilb. Execution, 40; Jenk. 

(t) Com. Dig. Execution (C 14). 407 ; per cur. 3 Bos. 6i Pul. 327. 

<u) Roll. Abr. Execution (^M 5). (s) Dalt. 136. 

(x) Gilb. Execution, 39: but see (a) Id ibid, 
3P. Wms. 401. 



310 ELEGIT. 

CHAP. xr. by descent, and the heir shall be liable to and chargeable with 
the obligation of his ancestor, for and by reason of such assets, 
as fully and amjjly as he might and ought to have been, if the 
estate in law had descended to him in possession in like manner 
as the trust descended." The estate liable to be taken by vir- 
tue of this statute must be a simple trust estate for the benefit 
of the debtor solely ; and therefore where land was vested for 
a long term of years in a trustee, in trust to permit E. G. to re- 
ceive the rents and profits until default of payment of a rent- 
charge, or until E. G. should insure the premises ; and in case 
of such default, in trust to pay to M. G. out of the rents and 
profits a certain rent charge, it was held that this was not such 
a trust as could be extended upon an elegit against E. G. (&). 
It was, under the stat. of 29 Car. 2, held, that if a man be 
cestui que trust of a term, it is not assets within the statute, for 
it extends only to a trust of land in fee (c). An equity of re- 
demption cannot be taken in execution under this statute, 
whether it be of a freehold estate (rf), or of a term of years (e). 
The words in the act, " at the time of the said execution sued," 
were held to refer to the seisin of the trustee ; and therefore, if 
he has conveyed the lands by the direction of the cestui que 
trust before execution, though seised in trust at the time of the 
judgment, the lands cannot be taken in execution (f) ; but 
since the passing of 1 & 2 Vict. c. 110, a conveyance of the 
lands after judgment would not defeat an elegit. 

Before the passing of the late statute, where an estate was 
limited as A. should appoint, and in default of appointment to 
A. in fee, it was held that A. might defeat the effect of a judg- 
ment, by an execution of the power of appointment (g). The 
execution creditor is not entitled to rent which becomes due 
after the delivery to the sheriff of an elegit, but before inqui- 

(b) Doerf. Hull V. Greenhill, 4 Bar. The plaintiff may, where the land of 
& Aid. 684. the defendant is mortgaged, file a bill 

(c) King V. Ballett, 2 Vern. 248 ; in equity to redeem, which he is en- 
and see 2 Saund. 11. titled to do on payment of principal 

(d) Plunket v. Penson, 2 Atk. 290. money and costs, as the equity of re- 

(e) Lyster V. Dolland, 1 Ves. jun., demption is considered assets to satisfy 
431 ; 4 Bro. Chan. Ca. 478, S. C. ; the judgment. 

and see Scott «. Scholey, 8 East, 467, (/) Hunt v. Coles, Com. Rep. 

486; Harris v. Booker, 4 Bing. 96; 226; Com. Dig. Execution (C) 14. 
12 Moore, 283, S. C; Mayor of (g) Doe rf. Wigan d. Jones, 10 B. 

Poole V. Whilt, 15 M. & VV. 571. & C. 459; 5 Man. & R. 563, S. C. 



ELEGIT. 311 

sition taken (/<)• It has been questioned whether the lands of chap, xr. 
a borough corporation, held only for the purposes of the borough 
vmder the Municipal Corporation Act (5 & G Will. 4, c. 76, s. 92), 
are liable to an elegit, but the question as yet has not been de- 
termined (/). 

All the authorities agree that the sheriff, in executing a writ inquisition 
of elegit, must take an inquisition, although the writ does not 
particularly require the sheriff to hold an inquisition ; for he 
cannot appraise the goods, or value the lands himself, but the 
same must be done byajury(^); therefore, on receiving the 
writ, the sheriff should forthwith proceed to impanel a jury(Z). 
The sheriff and jurors may go into the house or ground of the 
defendant if the doors and gates be open, but they ntiust not 
break open the gates or doors for the purpose of executing the 
writ (m). No notice is necessary to be given of executing the 
elegit. The sheriff should charge the jury " to inquire what 
goods and chattels, (except the oxen and beasts of the plough), 
and also what lands, tenements, rectories, tithes, rents, and 
hereditaments, including lands and hereditaments of copyhold 
or customary tenure, the defendant, or any person in trust for 
him, hath or had, or was seised or possessed of, in the bailiwick 

of the sheriff of N., on the day of , in the year 

of the reign of our sovereign lady Victoria, or at any time since, 
or over which the defendant had any disposing power, which he 
might without the assent of any other person exercise for his 
own benefit, that the same may, at a reasonable price and extent 
to be made, be delivered to the plaintiff to hold as his own 
proper goods and chattels, and also to hold the said lands, tene- 
ments, rectories, tithes, rents, and hereditaments respectively, 
according to the nature and terms thereof, to him the plaintiff 
and his assigns, according to the form of the statute, &c. 

(h) Sharpe v. Key, 8 M, & W. elegit that there are no lands, the 

379; 9 Dowl. 770, S. C sheriff need not return an inquisition, 

(i) Doe d. Parr v. Roe, 1 Q. B. for the use of that is only to deliver a 

700. Semble, that ihey are liable; moiety of the lands by, if there are 

see per Lord Denmin, C. J., i?). 706. any." This has been cited to show 

{k) Co. Litt. 289 b ; 2 Inst. 396 ; that where there are only goods the 

Com. Dig. Execution (C) 14; Eac. sheriff' need not hold an inquest, but 

Abr. tit. Execution (H) 2 ; Dyer, this does not prove any such thing. 
100 b; Palmer I). Humphrey, Cro. (/) As to the manner ofsummoning 

Eliz. 584 ; 4 Rep. 74. But see Stone- ajury, see the directions for so doing on 

house V. Ewen, Stra. 874, where it a writ of inquiry, post, chap. 13. 
is laid down to have been held per (m) Dalt. 134. 

Curiam : " If it be returned to an 



jury 



312 ELEGIT. 

cHAi'. XI. The inquisition ought to find the lands with convenient cer- 
Oi the find- ^^'^'y *, foF want of finding some particular estate the inquisition 
ina of the would be insufficient. If the defendant be ioint tenant, or tenant 

lurv. _ J ' 

in common, it ought to be specially mentioned in the inqui- 
sition (h). Thus it is said in Palmer's case(o), that where an 
inquisition found that the queen's debtor was possessed of cer- 
tain lands for the term of divers years yet to come, it is insuffi- 
cient, for a term cannot be extended without showing the be- 
ginning and certainty of the term ; and also, before the late sta- 
tute, the jury should find a moiety of the lands by metes and 
bounds, in order that the sheriff should deliver the same to the 
plaintiff (p). But since the stat. 1 & 2 Vict. c. 110, it is not 
necessary to set out the premises by metes and bounds : it is 
sufficient to describe them with such a degree of accuracy that they 
may be readily identifiedTy). The sheriff was not bound to deliver 
a moiety of each particular tenement and farm, but it was suffi- 
cient if he delivered particular tenements as a moiety in value of 
the whole (r). Thus, it is laid down in Brooke's Abridg- 
ment (a), " that if an elegit issue against one that hath two 
manors, the sheriff may deliver one of the manors to the plain- 
tiffin the name of a moiety of the whole, and is not bound to 
deliver a moiety of each manor, and so of two acres, and this 
seems to be when they are of equal value." Where the defend- 
ant had merely a house, if the sheriff upon an elegit delivered a 
moiety of the house without metes and bounds, such return 
was ill (Z) ; but the jury should set out such and such rooms as 

(n) Hutt. 16; 1 Brownl, 38. Saund. 68 c, n. (i). 

(o) 4 Rep. 74; Dalt. Sher. 139. (p) It would appear to be the pro- 

In the report of this case by Croke, vince of the jury to ascertain and set 

it is said that such a finding would out the moiety of the lands by metes 

be sufficient; Palmer v. Humphrey, and bounds; Sparrow v. Mattersock, 

Cro. Eliz. 584; see also 2 Leon. 121 ; Cro. Car. 319 ; Doug. 473. And it 

3 Leon. 204. " J he two reports may would not be sulficient for the sheriff 

perhaps be reconciled by this dis- himself to set out the moiety of the 

tinction, that when the whole term is lands. 

appraised and sold for a gross sum, as (q) Doe d. Roberts v. Parry, 13 

part of the debtor's personal estate, M. 6i W. 356 ; Sherwood v. Clatk, 

then, as the elegit is considered in the 15 M. & W. 764. 

nature o( a. Jieri faciaa, the sheriff (?•) Dean i'. Lord Abingdon, Doug, 

may sell such an uncertain interest 473. 

under it as well as under a fieri facias ; (s) Elegit, 14, cit. 12 Edw. 4, 2. 

but when a moiety is extended at an (l) Per Holt, C. J., Pullen v. 

annual value, so general a finding by Purbeck, Carth. 453 ; 12 Mod. 356, 

the inquest may perhaps be insuffi- S. C. 
cient;" but see Lane, 50, 51 ; 2 



ELEGIT. 

a moiety in value of the house, and the sheriff should deliver 
those rooms to the plaintiff (ii). 

Before the stat. 1 & 2 Vict. c. 110, if the sheriff did not set 
out and deliver the moiety of the lands by metes and bounds, the 
return was void (x). If the inquisition be void for uncertainty, 
or for any other defect, the court will set aside the return, and 
will order the writ to be vacated and grant another, and amerce 
the sheriff (y) ; but after the return has been filed, the courts 
formerly would not set aside a writ of elegit (2) ; and in a recent 
case (a), on a motion to set aside two writs of elegit, the court 
refused to set aside the second writ, because the sheriff had de- 
livered the whole of the land remaining after the first elegit on 
the second, inasmuch as such return was a mere nullity. 

But if lands which cannot be extended on an elegit be found 
on the inquisition together with lands which can properly be 
extended, and the sheriff sets out each, it would appear that the 
extent is not bad in toto, but only for the part that is not ex- 
tendible (b). Where fraud, deceit, or partiality has been prac- 
tised, if the writ be not filed, the court will stay the filing of it 
and grant another writ (c) ; so if it appear that the lands are 
extended at an undue value, the court will stop the filing of the 
return (d). 

If lands which cannot be extended are notwithstanding ex- 
tended, the objection may be taken in an action of ejectment (e). 
But if the return be void, the defendant may take the objection 
on an action of ejectment being brought to obtain possession of 
the land. Thus, in an action of ejectment (/), where the lessor 
of the plaintiff claimed as tenant by elegit, the sheriff's return 
stated that the jury found that the defendant had certain lands, 
&c., describing them and finding their value, " one equal 
moiety of which messuage, &c., the sheriff had caused to be 
delivered to the lessor of the plaintiff to hold, &c. ;" it was ob- 

(h) Per Bayley, J., in Fenny v. Ry. 603 ; 2 Bar. & Cress. 242, S. C. 

Durant, 1 Bar. & Aid. 42. '(b) Morris v. Jones, 3 D. & R. 

(x) Pfi) Holt, C. J., Carth.453 ; 1 603. 

Bar. & Aid. 40. (c) 2 Inst. 396. 

(v) 1 Sid. 91,239; Pullen d. Pur- (d) 2 Ca. Ch. 183; Com. Dig. 

becic, Salk. 563 ; 12 Mod. 368, S. C. Execution (C) 14. 

(s) Com. Dig. Execution (C) 14; (e) See Doe (Z. Parr n. Roe, 1 Q. B. 

2 Inst. 396 ; sed vide 1 Vent. 259 ; 1 700. 

Lord Raym. 718; 12 Mod. 355; (/) Fenny d. Masters v. Durant, 

Salk. 563". 1 Bar. & Aid. 40; see Denn v. Lord 

(a) Monis i'. Jones, 3 Dovvl. & Abingdon, Doug. 473. 



313 



314 ELEGIT. 

ciiAi'. XI. jected that the return was void for not setting out the moiety by 
metes and boimds, vvliich the Court of King's Bench, after argu- 
ment, held to be fatal, and ordered a nonsuit to be entered ; and 
Bayley, J., said, " In this case the jury might have found that 
the debtor was seised of such a house, and that such and such 
rooms constituted a moiety in value, and then the sheriff" might 
have delivered those rooms to the lessor of the plaintiff". If the 
return is bad, the defendant has a right to say it is bad. The 
objection was raised the same way as here at Nisi Prius in Denn 
V. Lord Abingdon. 

The court will not try the truth of an inquisition on mo- 
tion (g). The words of the old writ of elegit were, " to hold as 
his freehold," because the statute, in case of eviction, gives a 
remedy by assize ; still, however, a tenant by elegit has no free- 
hold, but only a chattel interest, which will devolve upon his 
executors {1i). 

When there If two persons had iudcrments against a defendant, and one 

are severnl J o o ' 

writs of eie- of them had a moietv of the defendant's lands delivered to him 

git, •' 

upon an elegit, the other, upon suing out an elegit afterwards, 
could only have a moiety of the moiety which remained to the 
defendant (i). But if one person had the two judgments, and 
sued two elegits during the same term ; on one elegit he should 
have a moiety of the defendant's lands, and the entire of the other 
moiety on the other elegit, and not merely a moiety of a moiety (Jk), 
How iiie The sheriff" is to deliver the whole of the goods found by the 

sheriff 19 to . . , , ^ , 1 • /• 1 

deliver the mquisition iuto the hands of the defendant ; and it was formerly 
lands. usual for the sheriff" to deliver actual possession of a moiety of 

the lands ; but now he only delivers legal possession, and in 

order to obtain actual possession, the plaintiff" must proceed by 

ejectment (/). 
Reiiini. The writ of elegit must in all cases be returned, if the sheriff" 

has done any thing under it ; and it is essential that the elegit 

(g) Cooper V. Gardner, 3 A. & E. (/) Taylor v. Cole, 3 T. R. 295 ; 

211. 2 Saund. 69 a ; sed vide the judgment 

(//) 2 Inst. 396. of Gibbs, C. J., in Rogers i;. Pitcher, 

(?) Huit V. Coggan, Cro. Eliz, 483. 6 Taunt. 207, where he expressed him- 

(/c; The Attorney-General v. An- sell to be of opinion that there is no 

drew, Hardr. 23 ; see also Doe d. necessity for tenant by elegit to bring 

Davies v. Creed, 5 Bing. 327 ; 2 M. ejectment to obtain possession, but 

& P. 648, S. C, nom. Doe d. Cheese that he might enter at once, excepting 

V. Creed ; sed vide Morris v. Jones, where the person in possession held 

3 Dowl. & Ry, 603; 2 Bar. & Cress. under a lease prior to the plaintiff's 

242, S. C. judgment. 



315 



and the inquisition taken by the sheriff should be returned chap, xi 
and filed, when land is extended by the writ(m). But if the 
defendant has no land, the sheriff need not return the inquisition 
at all (n) ; in such case the proper return is nihil. Mandavi 
hallivo is a good return to a writ oi elegit {6). And it is a good 
return, that the sheriff has extended the lands of the defendant, 
but could not deliver them to the plaintiff, for another had them 
in extent before {p). The court will not, at the instance of the 
sheriff, enlarge the return of an elegit by altering it to a later 
day {q). 

The sheriff is entitled under the stat. 28 Eliz. c. 4, to pound- Poundage. 
age on an elegit, that is to say, 1*. in the pound on the first 
3 00/.; and Qd. in the pound for the sum above 100/. (r). But 
it seems to be questionable whether he be entitled to poundage 
for executing an elegit on the whole debt, or only on the annual 
value of lands extended (s). 

If the inquisition be void, it is said that the court will set it 
aside and amerce the sheriff(<). And if the sheriff return that 
he has delivered land upon inquisition taken, when he refused 
to deliver it, an action on the case lies for a false return, though 
the plaintiff may enter without it, yet that is only in mitigation 
of damages (li). 

The tenant by elegit has only the land until his debt be Resiitutioi 
levied ; and whensoever the party pay or satisfy the debt of 
record, he shall enter into his land ; and so it is when the tenant 
by elegit is satisfied by the ordinary extent, the tenant of the 
land may enter. But if it be of any casual profit, to avoid the 
extent, he must have a scire facias in respect of the uncer- 
tainty (a;). But the Court of King's. Bench recently, on motion, 
referred it to the master to take an account of the rents and 
profits of an estate, of which the plaintiff was in possession by 
virtue of a writ of elegit ; and that the plaintiff should give up 

(m) Hoe's case, 5 Rep. 90 a ; Ful- (r) Tyson v. Paske, 2 Lord Raym. 

wood's case, 4 Rep. 67 ; Dyer, 100, 1212; Salk. 333, S. C. ; Jaysoa v. 

in marg. ; see Forms of Returns, Ap- Rash, Salk. 209. 

pend. (s) See aiite, 112; Price i). Hollis, 

()/) Stonehouse v. Owen, 2 Stra. 1 M. & Sel. 105; Peacock v. Harris, 

874. Salk. 331. 

(o) Sparrow v. Matlersock, Cro. (O See ante, 313. 

Car. 319. (h) Lister r. Bromley, 1 Roll. Abr. 

(p) Dalt. Sheriff, 232. 738, I. 15. 

\q) Hildvard v. Baker, 1 C. & M. (x") 2 Inst. 395; and see Underbill 

611 ; 2 Dovvl. 16, S. C. v. Devereux, 2 Saund. 68, 71. 



316 ELEGIT. 

ciiAi'. XI. possession, if it appeared that all the monies due to him had 
been received (y). In a court of equity, in taking the account 
of the profits of the land, the plaintiff is entitled to interest upon 
his judgment beyond the sum recovered by the judgment (z). 
If judgment be reversed where goods have been taken and deli- 
vered upon an elegit, the defendant shall be restored to the 
goods themselves, and not to the value of them as on restitution 
of goods taken on a. fieri facias (a) . 

(y) Price v. Varney, 5 Dow I. & (a) Goodyere v. Ince, Cro. Jac. 

Ryl 612 ; 3 Bar. & Cress. 733, S. C. 246 ; Bathurst's case, Dyer, 363, in 

(z) Godfrey y. Watson, 3 Alk. 517; marg. ; Bathurst v. Mayo, 1 Roll. 

Earl Bath t;. Earl Bradford, 2 Ves. Abr. 778, I. 32, 55. 
sen. 589. 



( 317 ) 



CHAPTER XII. 

HABERE FACIAS POSSESSIONEM. 

Of the Writ. — How executed.— Sheriff's Duty in Case of Dis- 
turbance.— Return.— Fees thereon. — Actions against the Sheriff 
in respect of. 

After a recovery in ejectment, it has been said that the plaintiff 
may enter upon the land without issuing any writ of posses- 
sion (a); but this doctrine cannot now be considered as law (6); 
and even if it were so, this mode of proceeding is open to very 
serious objections, as likely to lead to a breach of the peace ; 
and moreover it is highly inconvenient that any other person, 
except the known responsible officer of the court, should execute 
its judgments. 

The writ of habere facias possessionem is the writ of execution Of ihe writ. 
in the action of ejectment ; by which writ the sheriff is com- 
manded, that without delay he cause the plaintiff to have pos- 
session of his term (or, if there be more than one demise, " his 
several terms yet to come of and in the tenements recovered") ; 
af.fa. or ca. sa. for costs may be included in the writ ofhabere 
facias possessionem. The duty of the sheriff, in the execution 
and return of that part of the writ, is the same as on a common 
f.fa. or ca. sa. In such case the sheriff should make his return 
of both parts of the writ. 

On the delivery of the writ to the sheriff, he makes out his How exe- 
warrant to one or more bailiffs to execute it (c). He is bound 
to execute the writ w ithin a reasonable time ; and if after a writ 
is delivered to him, and he has an opportunity to execute it, and 
refuses or neglects to do so, he is liable to an action at the suit 
of the lessor of the plaintiff, who may recover against him all 
damage which he has sustained by reason of his neglect, even 
though the judgment be afterwards set aside by a judge's order, 

(a) Badger u. Floid, 12 Mod. 398; (c) See form. Append. The fee 

Anon. 2Tid. 156; 1 Burr. 88, arg. usually charged for the warrant is 

(6) See Doe rf. Stevens v. Lord, 6 2.s. 6rf. ; as to the legality of which 

Dowl. 218 ; 7 A, & E. 611, S. C. charge, see ante, 112. 



318 HABERE FACIAS POSSESSIONEM. 

CHAP. XII. in order to let the landlord in to plead (d). It is usual for the 
lessor of the plaintiff to give the sheriff an indemnity for exe- 
cuting the writ (e) ; and it seems he may demand an indemnity 
before he executes the writ(/). And in executing the writ, the 
sheriff and officer act under the immediate direction of the lessor 
of the plaintiff or his attorney, to whom the sheriff is to deliver a full 
and actual possession of the premises. The officer, if necessary, 
may break open either the outer or the inner doors of the house, 
in order to execute a writ o( habere facias possessionem (g); and 
if violence be apprehended, he should raise the posse comitatus(Ji). 
And as the sheriff is to give actual possession of the premises 
recovered, he should remove all persons and their goods from 
off the premises ; for if persons be left on the premises, the 
execution is not complete (i). If there be several tenements in 
the possession of one person, it is said to be sufficient for the 
sheriff to deliver possession of part to the plaintiff in the name 
of the whole (k) ; and this is said to be the safer way for the 
sheriff, because he executes the writ at his peril (/), and if he 
give possession of any land not included in the writ, he is a 
trespasser (?«) ; but it is recommended as the surest and most 
effectual way of executing the writ, for the sheriff to remove all 
the tenants entirely out of each house or parcel of land, and 
when the possession is quitted, to deliver it to the plaintiff; and 
this course is absolutely necessary where the land is in the 
possession of several tenants (n). The execution is not complete 
until the bailiffs have yielded possession to the plaintiff (o) ; and 
if the tenant, immediately after the sheriff has given possession, 
ejects the plaintiff, the sheriff may restore him to the possession, 
for the writ was not executed until the plaintiff has obtained 
full and quiet possession {p). As to the quantity of land which 
the sheriff is to deliver possession of to the plaintiff, as the writ 

{d) Mason v. Paynter, 1 Q. B. hold's Prac. 767, 7th edit. 
974. (/c) Per Haughton, J., Floyd v. 

(e) Tidd's Prac. 1080, 8th edit.; Bethel!, 1 Rol. Hep. 421; Roll. Abr. 

Com. Dig. Execution (A) 3; Run. Execution (H) 1. 
Eject. 432; see form of such indera- (/; Dalt. 256; lOVin. 539; Run. 

nity, post. Append. Eject. 432, 433 ; Tidd's Prac. 1081, 

(/) Adams' Eject. 342, 3id edit. 8th edit. 

\g) Semayne's case, 5 Rep. 91 b; (m) Sed vide Keilway, 119, 120. 

see ante, 75. (k) Roll. Abr. Execution (H) 2. 

(h) See anle, 73. (o) Per Holt, C. J., 6 Mod. 115. 

(i) Upton t). Wils, 1 Leon. 145; (p) Molineux v. Fulgam, Palm. 

Tidd's Prac. 1081, 8th edit. ; 2 Arch- 289. 



HABERE FACIAS POSSESSIONEM. .319 

does not describe either the quantity or locality with minute chap. xh. 
certainty, the party is bound to point out to the sheriff, at his 
peril, the precise lands he is entitled to ((/) ; if he take more, 
the court will order it to be restored (r). As where the plaintiff 
in ejectment, as tenant in common, recovered possession of five- 
eighths of a cottage, with the appurtenances, it appeared by 
affidavit that a writ of possession was executed by the sheriff, 
who turned the tenant out of possession of the whole, and locked 
up the door ; the court granted a rule upon the sheriff and the 
lessor of the plaintiff to restore the tenant to the possession of 
three- eighth parts of the premises (s). On recovery of land 
being part of a highway, the sheriff should deliver possession, 
subject to the right of passage over it (<). If the sheriff is 
to deliver possession of a certain number of acres, it seems that 
he must give so many acres in quantity, according to the com- 
mon estimation of the country where the land lies (u). 

In ejectment, the plaintiff and defendant being merely nomi- in case of the 
nal, even if real persons, execution might issue, notwithstanding eiiUer party. 
their death, without a set. fa. (x). And it seems that after the 
death of the lessor of the plaintiff, a writ might be issued and 
executed (?/) ; at all events, if it bear teste in his lifetime (2). 
When the real defendant dies after judgment and before execu- 
tion, it is said that a hab.fac. poss. may be issued and executed 
because execution is of the land only, and there is no new per- 
son to be charged (a). 

If the officer be disturbed in the execution of the writ, the Disturbance 

„,,..,, , . , o' "he sheritr. 

court, on amdavit, will grant an attachment against the person Attachment, 
disturbing him, whether he be defendant or a stranger ; for it 

(v) See Doe d. Davenport W.Rhodes, against the lessors of the plaintiff to 
11 M. & W. 608 ; 1 D. & L.297, S. pay over to the late tenant (defentl- 
C, per Lord Abinger, C. B.; Roe v. ant), the value of the crops after de- 
Street, 2 A. & E. 329; 4 N. & M. ducting the rent; Doe v. Witherwick, 
42, S. C. 3 Bing. 11 ; 10 Moore, 267, S. C. 

(r) Cottingham v. King, 1 Burr. (f) 1 Burr. 133. 

627, 629; Clonner v. West, 5 Burr. (u) Floyd v. Bethell, 1 Rol. Rep. 

2673 ; indeed the sheriff is not bound 420. 

to execute the writ, unless the lessor of (x) Tidd's Prac. 1171, 8th edit, 

the plamtiflr, or some person authorized {y) Tidd's Prac. 1172, 8th edit, 

by him, comes to receive possession; (z) Doe d. Boyer d. Roe, 4 Burr. 

Dalt. 255. 1970. 

(s) Roe dem. Saul v. Dawson, 3 (a) Per Holt, C. J., in Withers ?). 

Wils. 49. In a recent case, where Harris, 2 Ld. Raym. 808. But the 

crops were standing on the land, when surer method is said to be to sue out a 

possession was taken under a hab.fac. sci-fa. ; Adams's Eject. 307, 2d edit. 
pass., the court refused to grant a rule 



,'320 HABERE FACIAS POSSESSIONEM. 

CHAP. XII. is a contempt in any person to obstruct the execution of the 
process of the court : and it seems that even if the execution be 
complete by the officer leaving the plaintiff in possession, and 
the defendant presently eject him from such possession, the court 
will grant an attachment against the defendant (&). Where a 
defendant in ejectment, having been dispossessed under a writ 
of restitution, afterwards, on the night of the same day, came 
to the premises and took forcible possession of them, Wight- 
man, J., refused to grant an attachment against him, but made 
absolute a rule for a fresh writ of restitution to be executed 
within a week, and ordered the defendant to pay the costs of the 
application (c). 
New writ If the sheriff do not execute the writ, the courts will in ge- 

■whengranied. ^^^^| award an alias {d). And if the sheriff give possession of 
part only, the lessor of the plaintiff may have a new habere facias 
jjossessionan for the rest(e). But if the sheriff put the lessor of 
the plaintiff in possession, and make his return accordingly, and 
the defendant eject the lessor of the plaintiff, the courts will not 
grant another habere facias possessionem (f). And it would ap- 
pear that if immediately, or soon after the sheriff has given pos- 
session, the defendant forcibly turn him out, the plaintiff may 
have a new habere facias jjossessionern before the former writ is 
returned (g-). But it is necessary that the defendant should be 
connected with the dispossession of the lessor of the plaintiff (A). 
But where the lessor of the plaintiff was turned out by the de- 
fendant after a month's possession, the court held it too long a 
time to grant a new writ of possession (i). And in a recent case> 
where the lessor of the plaintiff had been put in possession by 
virtue of a writ of habere facias possessionem on the 22nd of 
February, 1806, which writ had never been returned by the 

(6) Kingsdale v. Mann, 6 Mod. vereux v. Undevhill, 2 Keb. 245. 

27; Salk. 321,S. C. In this case the (g) Kingsdale v. Mann, 1 Salk. 

plaintiff was leli in possession at nine 32i ;. 6 Mod. 27, 115, 298, S. C. ; 2 

o'clock in the morning, and he was Brownl. 216, 253; Pierson v. Ta- 

ousted at six in the evening ; but the veruor, 1 Rol. Hep. 353. See also 

court doubted whether or not it was Doe d. Pitcher v. Roe, 9 Dowl. 971 ; 

too late to grant an attachment. Doe d. Thompson v. Mirehouse, 2 

(c) Doe (/. Pitcher v. Roe, 9 Dowl. Dowl. 200 ; Doe d. Lloyd v. Roe, 2 

971. Dowl. N S. 407. 

(cZ) Molineux v. Fulgam, Palm. ( /i; Doe </. Thompson y. IMirehouse, 

289. 2 Dowl. 200. 

(e) 2 Keb. 245. ( i) Goodright v. Hart and ux. Slra. 

(/) 2 Brownl. 216, 253; De- 830. 



HABERE FACIAS POSSESSIONEM. 



321 



sherifF, and on the 10th of October, 1807, the person against chap, xii. 
whom he had recovered entered into tlie house by force, and 
resisted with violence all attempts to regain possession ; the 
court refused to grant a new habere facias, or an attachment 
against the party in possession, and held that, possession having 
been given under the first writ, the sherifF ought to have returned 
that he had given possession, and that the plaintiff could not 
afterwards have had another writ. An alias, it was said, cannot 
issue after a writ is executed (k) ; if it could, the plaintiff, by 
omitting to call on the sheriff to return the writ, might retain the 
right of suing out a new writ of habere facias 2^ossessionem as a 
remedy for any trespass which the same tenant might commit 
within twenty years after the judgment. Where a stranger turns 
the plaintiff out of possession after execution fully executed, the 
plaintiff is put to another action, or to an indictment for a for- 
cible entry (^). For the title never was tried between the plain- 
tiff and a stranger ; and he may claim the land by title paramount 
to the plaintiff, or he may come in under him, and then the 
recovery and execution in the former action ought not to hinder 
the stranger from keeping that possession which he may have a 
right to. If the law were otherwise, the plaintiff might, by 
virtue of a new habere facias, turn out even his own tenants, who 
came in after the execution executed ; whereas the possession 
was given to him only against the defendant in the action, and 
not against others not parties to the suit (m). 

Strictly speaking, the sheriff should return a writ of habere Return. 
facias 'possessionem ; but it is not essential to the validity of the 
execution that the sheriff should make his return, nor is it usual, 
unless called on so to do, for him to return the writ. If the sheriff 
do make a return, the usual return is, " by virtue of this writ 
to me directed, T have given full and peaceable possession urlto 
the within-named John Doe of the messuages, lands and pre- 
mises, with the appurtenances within-mentioned, as within I am 
commanded ;" and if there be a fi. fa. or ca. sa. in addition 
thereto, the sheriff adds, that he has levied goods, &c., or nulla 
bona to the former writ, or cepi corpus or non est inventus to the 
latter writ, according to the fact {n). The sheriff, in excuse, 

{k) Doe d. Pate v. Roe, 1 Taunt. and see id. 408; 1 Keb. 779. 

55. The case of Ratcliffe v. Tate, 1 (m) Bac. Abr. Eject. (G) 3. 

Keb. 779, was denied to be law. (h) See forms, Append, ch. 12. 

(/) Fortune v. Johnson, Styles, 318 ; 



322 HABERE FACIAS POSSESSIONEM. 

CHAP. XII. may return that he was always ready to dehver possession to the 
plaintiff, and that no person on his behalf came to receive pos- 
session (o), or that no person on behalf of the plaintiff came to 
show the premises to the sheriff (/>) ; but it would not be a good 
return for the sheriff to say that he was ready on a certain day 
to give possession to the plaintiff, and he gave notice thereof to 
the plaintiff, but that the plaintiff failed to come (</). It would 
appear that tarde is not a good return to a writ of hab. fac, 
pois. (r), nor that the sheriff could not execute the writ, being 
opposed by force, for he should have raised the jtosse comi- 
tatus(s). Mandavi hallivo to a hab. fac. poss. without a non 
omittas, is a good return {I). 

Poundage. By the Stat. 3 Geo. 1, c. 15, s. 16, the sheriff is prohibited 

from taking, for executing a hab. fac. poss., more (which sums 
the sheriff is thereby empowered to take) than I2d. in every 205., 
if the yearly value of the premises do not exceed lOOZ. ; but if 
it exceed 100/., then 6d. for every 205. above that sum. But 
where the sheriff, at the instance of the plaintiff, had been put 
to extra trouble and expense, the Court of Common Pleas con- 
firmed the prothonotary's taxation of costs, where he had allowed 
one guinea for the journey of the sheriff's officer; 5s. for 
poundage ; 6s. 8d. for the warrant ; and 1 Os. 6d. on the delivery 
of possession. The court indeed said that the statute of the 
3 Geo. 1, c. 15, s. 16, which regulates the poundage the sheriff is 
entitled to on a writ oUiab.fac. jioss., applied only to cases between 
party and party, and not as between attorney and client (u). 

Actions If the sheriff make a false return to this writ, there is no 

against 'be 

sheriff. doubt that he would be liable to an action for a false return. 

It would seem that if the lessor of the plaintiff show the sheriff 
a stranger's land, by force whereof the sheriff enters, yet he is 
no trespasser (x). 

We have also seen that an action will lie against the sheriff 
for negligence in executing the writ (y). 

(o) Floyd V. Bethell, Rol. Abr. (0 See ante, 98. 

Retorn (H). (m) Capp v. Johnson, 7 Moore, 

(p) Saville, 28. 518. 

(9) Roll. Abr. Retorn (1). (i) Dalt. 257; Keil. 119, 120. 

(r) See ante, 95. But see such a Sed quare. 

return, Retorna Brevium, 352. {y) Mason v. Paynter, 1 Q. B. 

(s) See ante, 97. But see Upton 974; ante, 117. 
V. Wells, 1 Leon. 142. 



323 ) 



CHAPTER XIII. 

WRIT OF INQUIRY. 

Of the Writ. — Inquest, at what Time and before whom to be held. — 
Inquest, Proceedings before. — Evidence. — Damages, how as- 
sessed. — Return. — Fees. — Sheriff's Liability. 

There are various writs of inquiry, such as writs of ad quod or the writ. 
damnum (a), inquiry of damages, or of waste ; but the sheriff's 
duty is in all cases to make the inquiry as prescribed by the 
writ : the manner of holding the inquisition, &c. will be found 
detailed at large in this chapter. 

The writ of inquiry of damages, which is the only writ of in- 
quiry much in use at the present day, is a judicial writ, directed 
to the sheriff of the county where the venue is laid (6), com- 
manding him, " because it is unknown to the court what damages 
the plaintiff has sustained," that by the oath of twelve good and 
lawful men of his bailiwick he diligently inquire what damages 
the plaintiff in the action has sustained by reason of the pre- 
mises as for his costs and charges by him about his suit in that 
behalf expended ; and that the sheriff send the inquisition which 
he shall take therein to the court on the return day (c), " under 
his seal and the seals of those by whose oath he should take 
the inquisition." This writ issues only in case of a judgment 
for the plaintiff by default or on demurrer against all the de- 
fendants, and in those actions only where damages are reco- 
verable. The writ of inquiry issues merely to inform the 
conscience of the court of the amount of the damages ; but the 
court, if they please, may themselves assess the damages. And 

(a) See inquisition and warrant on ing, or any judge of any of the supe- 

a writ of ad quod damnum, post, Ap- rior courts of law at Westminster, ia 

pendix, c. 13. As to the writ of in- any other county or place than that 

quiry in replevin, see post, chap. 18, in which the venue is laid, and the 

s. 3. court may order a suggestion to be 

(h) But by the stat. 3 & 4 Will. 4, entered on the record lo that effect. 

c. 42, s. 22, in local actions, the writ (c) See writ, Tidd's Forms, 231, 

may be executed, by order of the court 232, 5th edit.; Archbold's Forms, 342. 
in which the action shall be depend- 



324 



WRIT OF INQUIRY. 



CHAP. xiii. therefore, if in such case final judgment be signed without a 
writ of inquiry, it is not error (e). Indeed, it is now the practice 
of the courts to refer actions upon bills of exchange and pro- 
missory notes, on mortgage deeds, for rent where the lease is 
in writing, and other demands for a sum certain upon written 
instruments, to the master, to compute what is due thereon, and 
in such cases the plaintiff is allowed to sign final judgment with- 
out the intervention of a writ of inquiry (/). The writ is now 
tested on the day on which it is issued, in actions within the 
Uniformity of Process Act, 2 Will. 4, c. 39, and is made return- 
able on any day certain, in term or in vacation (g-). 

Inquest at The inouest may be held at any time after the delivery of the 

what lime, . ^ . •' •' •' 

and before writ to the sheriff, and before or on the return day (A). But a 
held. ' writ of inquiry would not be well executed after the return day, 

or even (when the proceedings were by original) between the re- 
turn day and the quarto die post (i). Where the sheriff held an 
inquest on the return day of the writ, but the jury did not giv^e 
their verdict for two or three days afterwards, the writ was held 
to be well executed (^). Eight days' notice should be given of 
executing the writ(/), and the notice should be given for exe- 
cuting it between some two hours of the day, as between twelve 
and two o'clock ; if notice be given for executing it between a 
longer period, as between ten and two o'clock, the court would 
set aside the inquest for irregularity, provided the defendant did 
not attend (m). If the defendant do not attend punctually at the 
time mentioned in the notice, and the writ be executed in his 
absence, the court will not relieve him (n). On the other hand, 
if the defendant attend at the hour, he will not be warranted in 

(e) 2 Saund. 107, n.(2); Gould v. tance from London than forty miles, in 

Hanimersley, 4 Taunt. 148; Bridport which case fourteen days' notice is ne- 

V. Jones, 3 Man. & G. 627, n. (a). cessary ; Blaaw v. Chaler, 6 Taunt, 

(/) Chit. Archb. Prac. 709, 7th 445; Stevens v. Pell, 2 Dowl. 355. 

edit.; Tidd's Piac. 589, 8th edit.; 2 The lime is computed exclusively of 

Saund. 107 a. the first and inclusively of the last day, 

(g) 1 Will. 4, c. 7, s. 1. So also unless the last be a Sunday, Christ- 

when issued out cf the Court of Pleas mas day, Good Friday, vr a public 

at Durham ; 2 & 3 Vict. c. 1 1, s 17. fast day ; Reg. Gen. H. 2 Will. 4, 

(h) See ante, 78. r. 8. 

(i) Ibid. (m) Foster «. Sraales, Barnes, 295 ; 

{k) Rol. Abr. Process (G) 5. See Robinson d. Philij)S, Barnes, 296; Le 

also Dyke v, Blakston, 2 Lord Raym. Marque v. Newman, Com. 551 ; Ison 

1449. V. Fowen, Stra. 1142; and see 1 Bos. 

(/) Unless when it is to be exe- & Pul. 363. 

cuted in London or Middlesex, and (n) 1 iiarnard. 233. 
tiie defendant lives at a greater dis- 



WRIT OF INQUIRY. 



325 



leaving the court at the expiration of the time mentioned in the chap. xm. 
notice, for the sheriff may have prior business, which may detain 
him beyond that time (o). The inquest is generally held before 
the under-sheriff himself, but he may appoint a deputy for the 
purpose of executing it ; such deputy should be regularly ap- 
pointed by a written authority under the seal of office (p). The 
sheriff cannot send his mandate to the bailiff of a liberty to exe- 
cute a writ of inquiry (q). But the sheriff can only make one 
deputy to hold the inquest; therefore, where two under-sheriffs 
extraordinary were deputed to take and did take an inquest, 
the court set aside the inquisition, saying, " if the high sheriff 
may appoint two, he may appoint twenty or more ; if he can 
exceed one, no line can be drawn to limit the number (r\" 
Indeed, where the under-sheriff lives in the town where the 
inquest is held, it is irregular to appoint a deputy ; in such case 
the under-sheriff should execute it himself (5). Nor can the 
writ in any case be executed by a deputy of the under-sheriffQ). 

By the statute 6 Geo. 4, c. 50, s. 52, it is enacted, that no jurors, who 
person shall be liable to be summoned or impannelled to serve befand how 
as a juror, in any county in England and Wales, or in London, nonla^^^nd""^ 
upon an inquest or inquiry, to be taken or made by or before ""'^^• 
any sheriff or " coroner, by virtue of any writ of inquiry, or by 
or before any commissioner appointed under the great seal, and 
seals of Exchequer, or courts of a county Palatine, or of Wales, 
who shall not be duly qualified according to that act to serve 
as a juror on trials at nisi prius (u). Coroners holding inquests, 
by virtue of their office, without writ, and sheriff's officers for 
liberties, &c., or of cities and towns corporate, are excepted out 
of this act. By section 53 of the same act, " if any man, duly 
summoned and returned as a juror to serve on such inquest, 
and shall not, after being three times openly called, appear and 
serve as such juror, every such sheriff, or in his absence the 
under-sheriff or secondary, are authorized and required (unless 

(n) Williams v. Frith, Doug. 198. (n) For the qualifications of jurors, 

(p) Davis V. Skyllins, Barnes 232. see post, chap. 17. When it appears 

(q) Cora. Dig. Retorne (D) 3; that a common jury is an improper 

Wisely v. Gunstone, 2 Rol. Abr. 461 ; one to assess the damages on a writ of 

Hob. 83, S. C. inquiry, the court will direct the she- 

(r) Denny i;.Trapnell,2 Wils. 378. riff to summon a good jury, from the 

(s) 2 Wils. 379. special jury book; Price v. Williams, 

(t) .Tones v. Williams, 2 Dowl. 5 Dowl. 160. 

N. S. 938. 



326 WRIT OF INQUIRY. 

CHAP. xiiT. some reasonable excuse shall be proved on oath or affidavit) 
to impose such fine upon every man so making default as they 
shall respectively think fit, not exceeding five pounds :" the 
sheriff or under-sheriff shall make out and sign a certificate, 
containing the christian and surname, the residence and trade 
or calling of every man so making default, together with the 
amount imposed and the cause of such fine ; and shall transmit 
such certificate to the clerk of the peace for the county, &c., in 
which every such defaulter shall reside, on or before the first 
day of the quarter sessions next ensuing;" and such fines are to 
be entered on the roll of the fines imposed at the quarter ses- 
sions, and levied and applied in the same manner (m). 

How exe- The under- sheriff, on the receipt of the writ, should verbally 

or by writing order a bailiff to summon a jury to attend at the 
time and place appointed for holding the inquest ; when a jury is 
assembled, the under-sheriff, (or his deputy), after naming the 
title of the cause, administers the proper oath to the jury (a;). 
It is said to have been ruled that jurors on a writ of inquiry 
cannot be challenged, but it is in the discretion of the sheriff to 
admit such challenge if it appear to be a good cause of chal- 
lenge (?/). The plaintiff's attorney or counsel then opens his 
client's case, stating the evidence he will adduce in support of 
his case ; and then he proceeds to call his witnesses, whom, after 
being sworn, he proceeds to examine in support of his case ; or, 
if the case admits it, he may address the jury without offering 
any evidence. The defendant's attorney or counsel then ad- 
dress the jury, and calls his evidence in mitigation of damages, 
upon which evidence the plaintiff's attorney has a right to reply. 
If it be necessary for the ends of justice, as to enable one of the 
parties to adduce evidence, the sheriff may adjourn the inquest 
to another day (2). The under-sheriff, or his deputy, then sums 

(u) As to such fines, see post, chap. ties, and a true verdict give, according 

17, and stat. 3 Geo. 4, c. 46. to the evidence. So help ynu God," 

(x) The oath is usually to each To the others of the jury — "The same 

juryman — " You shall well and truly oath which your foreman hath taken 

try all such matters and things as shall on his part, you and each of you shall 

be given in charge touching this writ well and truly observe and keep on 

of inquiiy, and a true verdict give. your parts. So help you God." 
So help yon God." The following form (i/j Anon. 3 Salk, 81, per Holt, C. 

is given in fekirrow, p. 319 : — To the J. ; Anon. 6 Mod. 43. 
foreman — " You, as foreman of this (s) Colman v. Mawby, Stra. 853; 

jury, shall well and truly inquire and Markham v. Middleton, Stra. 1269. 
assess the damages betvyeen the par- 



WRIT OF INaUIRY. ^27 

up the whole case, stating the nature of the injury set out in chap. xm. 
the pleadings and the evidence. If the direction by the under- 
sheriflP as to the criterion by which the jury are to assess the 
damages be wrong (a), or the jury find a verdict against evi- 
dence (6), the court out of which the record issues will set aside 
the inquisition, and grant a new writ of inquiry. 

The under-sheriff or his deputy should only admit such per- Evidence, 
sons as witnesses as are competent witnesses in a trial at nisi 
prius. The witnesses, before giving their evidence, should be 
sworn by the under-sheriff or by the crier (c). As the judg- 
ment by default admits that the plaintiff has a cause of action as 
stated in the declaration, all the plaintiff has to prove, or the 
defendant is allowed to controvert, is the amount of the da- 
mages (d) ; therefore it was holden that a lease mentioned in 
the condition of a bond, set out by the defendant upon oyer, need 
not be proved (e). So a bill of exchange or promissory note, 
if declared upon, need not be proved or even produced (/). 
And if a bill of exchange or promissory note, being produced, 
appear to be upon a wrong stamp, the defendant cannot take 
advantage of it (g) : if, however, it be necessary to prove 
the instrument in order to show the amount of damages, (as 
where, in setting it out, the sum is laid under a videlicet,) it 
must be properly stamped, or it cannot be admitted (A). So the 
defendant, in an action on a contract, will not be allowed, even 
in mitigation of damages, to give evidence of fraud, or of any 
other matter which would render the contract void ; for by 
allowing judgment to go by default he has admitted the validity 
of the contract (i). Neither will the defendant be allowed to 

(a) See Gainsfordt). Carroll, 2 Bar. (e) Collins u. Rybot, 1 Esp. 157. 

& Cress. 624 ; 4 Dowl. & Ry. 161 , (/ ) Lane v. MuUins, 2 Q. B. 254; 

S. C. Lawrence v. Clark, 14 M. & W. 250 ; 

(ft) Woodford v. Eades, Stra. 425. 3 Dowl. & L. 87, S. C. ; overruling 

(c) The following is submitted as Green y. Hearne, 3T. R. 301 ; Anon,, 
the proper oa'h : " The evidence that 3 Wils. 155. 

you shall give to this inquest in the (g) De la Courtier v. Bellamy, 2 

cause wherein A. B. is plaintiff and Show. 422. 

C. D. defendant, shall be the truth, (h) King v. Beck, 8 Dowl. 735; 
the whole truth, and nothing but the Cooper v. Blick, 2 Q. B. 924 ; Ban- 
truth. So help you God." bury Union v. Robinson, 1 Dav. & 

(d) De Gaillon v. L'Aigle, 1 Bos. M. 96. 

& Pul. 368 ; East India Company v, (i) East India Company v. Glover, 

Glover, Stra. 612; Thelluson p. Flet- Stra. 612; De Gaillon v. L'Aigle, I 

cher, Doug. 315; Williams v. Cooper, Bos. & Pul. 368. 
3 Dowl. 204. 



WRIT OF INQUIKY. 



Damages, 
how assessed 



cnAP.xni. give in evidence, in mitigation of damages, any matter which 
might have been made the subject of a set-ofF(/(;) ; or any fact 
which would be a bar to the action if pleaded (Z). 

In trespass, or any other action, where the damage actually 
sustained by the plaintiff is the measure of the damages to be 
given by the jury, if the plaintiff do not prove the nature of the 
injury and the amount of the damage sustained by him, the jury 
should give nominal damages merely; but where the jury are 
to imply the amount of the damages from the nature of the in- 
jury, the jury may give more than nominal damages, without 
any evidence of the damage being given. Thus, in an action 
for words imputing subornation of perjury to the plaintiff at the 
execution of the writ of inquiry, the counsel for the plaintiff 
offered no evidence, but merely addressed the jury, who gave 
501. damages ; the court held that they had not estimated da- 
mages upon erroneous grounds (m). If there be two or more 
defendants who suffer judgment to go by default, the inquest 
cannot, even in trespass, sever the damages (n) ; but where 
there is judgment by default against one defendant, and judg- 
ment upon demurrer against the other, the inquest may sever 
the damages, because the defendants have severed in plead- 
ing (o). 

When the jury have agreed upon the damages, the under- 
sheriff fills up the inquisition, and reads it to the jury, which the 
under-sheriff', in the name of the high-sheriff and the jury, sign 
opposite to their seals ; which inquisition (p) the sheriff keeps, 
and he makes out another upon parchment, sealed with the seal 
of office, and signed with the sheriff's name, and to this the 
seals of the jury are affixed, but they do not sign it. The in- 
quisition on parchment is then annexed to the writ of inquiry, 
and the return is indorsed on the back of the writ in these 
words : " The execution of this writ appears in a certain inqui- 
sition hereunto annexed." 

At the return of the writ of inquiry, a rule for judgment may 



Return 



jDdgmeDt 
and execution 
thereou. 



(k) Carrulhersy. Graham, 14 East, 
578. 

(/) Leicester v. Walton, 2 Campb. 
251 ; Speck v. Phillips, 5 M. & W. 
279. 

(m) Tripp v. Thomas, 5 Dowl. & 
Ry. 276 ; 3 B. & C. 427, S. C. 



(n) Sir John Heydon's case, 11 
Rep. 5 ; Onslow v. Orchard, Stra. 
422. 

(o) Chapman V. House, Stra, 1140; 
but see 11 Rep. 5, 7. 

(p) See form, Appendix, cli. 13. 



WRIT OF INaUIRY. 329 

be given, costs taxed, final judgment signed, and execution chip, xin. 
issued forthwith, unless the sheriff oi* other officer, before whom 
the same may be executed, shall certify under his hand upon 
such writ that judgment ought not to be signed until the defend- 
ant shall have had an opportunity to apply to the court to set 
aside the execution of such writ, or one of the judges of the said 
court shall think fit to order the judgment to be stayed until 
a day to be named in such order : provided always, that in case 
the signing of judgment on such writ shall be postponed by rea- 
son of such certificate or order, or by the choice of the plaintiff 
or otherwise, and judgment shall be afterwards signed thereon, 
such judgment shall be entered of record as of the day of the 
return of such writ, unless the court shall otherwise direct (q). 

Before the stat. 3 & 4 Will. 4, c. 42, all assessments of da- Writ of in- 
raages in actions upon bonds, or for any penal sum for non- s'&o Win. 3, 
performance of any covenants or agreements in any deed or 
writing, under the stat. 8 & 9 Will. 3, c. 1 !, in case where there 
was judgment for the plaintiff on default or by demurrer, could 
be made only before the justices of assize or nisi prius for the 
county in which the venue was laid, for which purpose a writ 
issued to the sheriff of that county to summon a jury to appear 
before the justices of assize or nisi prius of that county to in- 
quire into the truth of the several breaches suggested on the 
roll, and to assess the damages that the plaintiff should have 
sustained thereby. But by the stat. 3 & 4 Will. 4, c. 42, s. 16, 
after reciting that it would lessen the expenses of trials and 
prevent delay if such writs of inquiry were executed before the 
sheiiff of the county where the venue is laid, it is enacted, that 
all writs issued under and by virtue of the statute 8 & 9 Will. 3, 
c. 11, shall, unless the court where such action is pending, or 
a judge of one of the superior courts, shall otherwise order, 
direct the sheriff of the county where the action shall be brought 
to summon a jury to appear before the said sheriff, instead of the 
justices or justice of assize or nisi prius of that county, to inquire 
of the truth of the breaches suggested, and assess the damages that 
the plaintiff shall have sustained thereby, and shall command 
the said sheriff to make return thereof to the court from whence 
the same shall issue, at a day certain in term or vacation in such 

(q) 1 Will. 4, c. 7, s. 1. See Reg. Gen. H. 2 Will. 4, r. 67. 



330 



WRIT or INQUIRY. 



CHAP. XIII. writ to be mentioned ; and such proceedings shall be had after 
the return of such writ as are in the said statute in that behalf 
mentioned, in like manner as if such writ had been executed 
before a justice of assize or nisi prius. 

By the 19th section of the same statute, the provisions of the 
1 Will. 4, c. 7, s. 1 (r), are extended to these writs of inquiry. 

As to the fees chargeable by the sheriff and his officers on 
a writ of inquiry, see ante, p. 103. 

The liability of a sheriff to an attachment or an action for any 
misfeasance is the same on a writ of inquiry of damages as on 
any other writ. It is laid down, that if the sheriff return that 
the inquest or jury found no damages, he shall not be amerced 
for this default of the jury ; for the sheriff shall not be amerced 
but where he returns the writ falsely or insufficiently of himself, 
whereas here he returned it as he presented it(s). 



Fees. 



Liabiliiy of 
the sheriff. 



(r) Ante, ^29. 

(s) Bro. Retorne, 20 ; Filz. Retorne, 66 ; 5 Rep. 32, 33. 



( 331 ) 



CHAPTER XIV. 

WRIT OF TRIAL. 

Of the Writ. — When and how executed. — Return. — New Trial, 
8^c, — Judgment and Execution. — Sheriff's Fees. 

By the statute 3 & 4 Will. 4, c. 42, s. 17, it is enacted, that in Writ of trial, 
any action depending in any of the superior courts for any debt 
or demand in which the sum sought to be recovered, and in- 
dorsed on the writ of summons^ shall not exceed twenty pounds, 
it shall be lawful for the court in which such suit shall be de- 
pending, or any judge of any of the said courts, if such court or 
judge shall be satisfied that the trial will not involve any difficult 
question of fact or law, and such court or judge shall think fit 
so to do, to order and direct that the issue or issues joined shall 
be tried before the sheriff of the county where the action is 
brought, or any judge of any court of record for the recovery 
of debt in such county, and for that purpose a writ shall issue 
directed to such sheriff or judge, commanding him to try such 
issue or issues by a jury to be summoned by him, and to return 
such writ, with the finding of the jury thereon indorsed, at a day 
certain in term or in vacation, to be named in such writ ; and 
thereupon such sheriff or judge shall summon a jury, and shall 
proceed to try such issue or issues. 

The 18th section enacts, that at the return of any writ for the 
trial of such issue or issues as aforesaid, costs shall be taxed, 
judgment signed, and execution issued forthwith, unless such 
sheriff, deputy, or judge before whom such trial shall be had, 
shall certify under his hand upon such writ that judgment ought 
not to be signed until the defendant shall have had an oppor- 
tunity to apply to the court for a new inquiry or trial, or a judge 
of any of the said courts shall think fit to order that judgment 
or execution shall be stayed till a day to be named in such order; 
and the verdict of such jury, on the trial of such issue or issues, 
shall be as valid and of the like force as a verdict of a jury at 



crises 



332 WRIT OF TRIAL. 

CHAP. XIV. nisi prius ; and the sheriff or his deputy, or judge presiding at 
the trial of such issue or issues, shall have the like powers with 
respect to amendment on such trial, as are hereinafter given to 
judges at nisi prius («). 

In what These enactments apply only to actions for debts or pecuni- 

ary demands, where both the sum really sought to be recovered, 
and the sum indorsed on the writ, do not exceed 201. An 
order for a trial before the sheriff cannot be obtained, therefore, 
in an action of tort(i), nor in an action for unliquidated damages 
for breach of contract (c). If the action is brought substantially, 
although not directly, for a debt limited to an amount not ex- 
ceeding 20^., it is sufficient (c?). If the writ be sued out and 
indorsed for an amount above 20/., although less is really due, 
the judge has no power to make the order, even though the 
plaintiff be willing to waive the excess (e). It appears at one 
time to have been considered, that by consenting to the order 
and appearing at the trial, the defendant waived any objection to 
the jurisdiction of the sheriff (/") ; but it seems now to be agreed 
that the parties cannot, by their consent, give him jurisdiction 
in a case not triable by him under the statute (g). Where the 
issue is not according to the form given by the rule of H. T. 4 
Will. 4 (A), the court will give the plaintiff leave to amend on 
payment of costs (j) ; and such amendment may be made by the 
court or a judge at any stage of the proceedings, even at or 
after the trial (j). If, however, such amendment be not made, 
the variance from the form is a ground for arresting the judg- 
ment (A;). But the defendant will not be entitled to set aside 
the proceedings after verdict, on the ground that irrelevant 
matter is introduced into the issue which is not in the writ, the 

(a) Sections 23, 24. On this sub- W. 55. 

ject see Cliit. Arclib. Prac. 7ih ed. (g) See Smith v. Fkown, 2 M. & 

281 ; Jervis's Rules, 202 et seq. W. 851 ; Allen v. Pink, 4 M. i< W. 

(h) Watson v. Abbot. 2 C. & M. 140. 

150; 2 Dowl. 215; Smith v. Jirown, (/t) Append, ch. 14. 

2 M. & W. 851 ; 5 Dowl. 736, S. C. (i) Attwill v. Baker, 2 M. & VV. 

(c) Jacquot v. Boura, 5 M. & W. 272; 3 Dowl. 462. 
155 ; 7 Dowl. 331 , S. C. ( j) Cox v. Painter, I N. & P. 581 ; 

(d) Price v. Morgan, 2 M. & W. Percival v. Connell, 3 Bing. N. C. 
53; Allen v. Pink, 4 M. & W. 140; 877; 5 Scott, 191 ; 6 Dowl. 68, S. 
6 Dowl. 668, S. C. C. 

(e) Trotter v. Bass, 1 Hodg. 23 ; a) Handford v. Handford, 6 Dowl. 
see Burleigh v. Kingdom, 2 Dowl. 473 ; see Lycett v. Tenant, 4 Bing. 
351. N. C. 168; 5 Scott, 479; 6 Dowl. 

(/) See Price v. Morgan, 2 M. & 436, S. C. 



WRIT OF TRIAL. 333 

plaintiff having given notice before the trial that he does not chap, xiv, 
intend to proceed with such irrelevant matter at the trial (k). 
Where the date of the writ of summons is untruly stated in the 
writ of trial, it is a ground for setting aside the verdict, at 
least, if the defendant have not appeared at the trial (/). 

The writ is to be directed to the judge of the court of record To whom 
in those places in which there is a court of record, and to the 
sheriff where there is no such court (?/?). It seems it cannot go 
to the coroner (n). It is engrossed on parchment and sealed, Form, &c. 
but not signed (o), and then left, together with the rule or order 
annexed to it, at the sheriff's office a reasonable time (two days 
at least) before the day of trial. It must be resealed as in 
other cases Qi). If it be to assess damages on demurrer (as it 
may be), it must be framed accordingly (q). Blanks must not 
be left in it (r). 

If the cause be tried, even by adjournment, on a day sub- Whenes- 
sequent to the return day of the writ of trial, it seems that it is 
a mis-trial (s). In one case, however, it was held that the 
defendant waived the objection by appearing at the trial (f). 
An alteration of the record, by the insertion of a different day 
of trial, will not render a resealing of the writ necessary, 
except where the alteration is to a day subsequent to the return 
of the writ (?<). 

The same notice of trial must be given as in a cause at Nisi 
Prius(a;). 

The writ may be executed by the under-sheriff, or other How ex- 
deputy of the sheriff, but not by the deputy of the under- ""'«''• 
sheriff (y). The sheriff, &c., has the same power as to the 

(/c) Hiam v. Smith, 6 Dowl. 710. (9) Fryer v. Smith, 1 Dowl. & L. 

(/) White V. Farrer, 2 M. & W. 80. 

288 ; S. C. nom. Wight v. Ferrers, 3 (r) Dennett v. Harding, 2 Dowl.& 

Dowl. 463; Whipple v. Manley, 3 L. 488. 

M. & W. 432; 5 Dow!. 100; Far- (s) Mortimer t;. Preedy, 3 M. & W. 

wig V. Cockerton, 3 M. & W. 169; 602; 6 Dowl. 544. 

Ashburton v. Sykes, 1 Dowl. & L. (() Sherman v. Tinsley, 4 Scott, 

133. 286; see Pinkney v. Booth, 1 Dowl. 

(m) Clarke v. Manner, 4 M, & N. S. 421 ; ante, 78. 

Scott, 171. (u) Chandler V. Bezward, 2 M. & 

(n) Levy v. Magnay, 10 M.5t W. W. 205 ; 5 Dowl. 311. 

664. (j) Charnock v. Smith, 3 Dowl. 

(0) Reg. Gen. H. 4 Will. 4, r. 19. 607; see Dignam v. Ibbotson, 3 M. 

(p) Ashburton v. Sykes, 1 Dowl. ^< W.431. 

& L. 133. (v) Jones v. Williams, 2 Dowl. N. 

S. 938 ; see ante, 325. 



334 WRIT OF TRIAL. 

CHAP. XIV. general conduct of the trial as a judge : thus, he may postpone 
the trial if he see cause (z) ; he may nonsuit the plaintifF(a) ; 
he may lay down a rule that no person but a barrister or attorney 
shall appear as the advocate (b). But he cannot certify under 
any statute, or under a Court of Requests Act, to deprive the 
plaintiff of costs (c) ; but it seems that it would be a sufficient 
answer to an application for the judge's order for a writ of trial, 
that the amount in dispute is within the limit of a Court of 
Requests Act(c?). He has no power to refer the cause to 
arbitration (e). Where a bill of exceptions was tendered to the 
direction of an under-sheriff, which he would not receive, the 
court refused to interfere to stay judgment and execution (y). 

Jury. The jury to try the issue must be such as are designated in 

the writ. Thus, where the writ was directed to the recorder of 
the borough of N., directing him to summon twelve lawful men 
of his county to try, &c., and the cause was tried by juries re- 
sident within the borough and not on the county list, the trial 
was held irregular {g). But such an irregularity is waived by 
the consent of the parties to the jury impannelled(A). And it is 
not essential that the jury should come from the county ; they 
may be taken from a borough or other limited jurisdiction, 
where the writ is directed to a judge of an inferior court of re- 
cord there (i). 

Reiurn. The Statute directs the return to be on " a day certain in term 

or vacation, to be named in such writ," the time not being 
further specified. In practice, it is usually made returnable in 
the term in which the trial is had, where there is sufficient of 
the term remaining ; and when the trial is had in vacation, on 
the same or the following day (k). 

New trial, The courts havc laid down a rule that a new trial shall not be 

&e. 

(z) Pouraker v, Jackson, 2 Jurist, 721 ; Harrison v. Greenwood, 3 

329. Dowl. & L. 353. 

(a) Watson V. Abbott, 2 Dowl. (/) White v. Hislop, 4 M. & W. 

215. 73; 6 Dowl. 693. 

(6) Tribe v. Wingfield, 2 M.& W. (g) Farmer v. Mountfort, 8 M. & 

128. W. 266. 

(c) Wardroper v. Richardson, 3 (/t) Pryme v. Titchmarsh, 10 M. 

Nev. & M. 839; 1 Ad. & E. 75; & W, 605. 

Pritchard v. M'Gill, 2 M. & W. 380. (O Farmer v. Mountfort, 9 M. & 

{(l) Jones V. Barnes, 2 M. & W. W. 100. 

313; 3 Dowl. 455; Pritchard t). (?c) Billing u. Railton, 2 Dowl. & 

M'Gill, supra. L. 771. 

(e) Wilson v. Thorpe, 6 M. & W. 



WRIT OF TRIAL, 335 

granted in cases tried under a writ of trial, on the ground of the chap. xrv. 
verdict being against the evidence, where the damages do not 
exceed 51.(1). On motion for a new trial, the notes of the 
sheriff or his deputy are not conclusive on the parties like those 
of a judge, but may be supplied or varied by affidavits of what 
took place at the trial (in). Although no application have been 
made to the sheriff, &c., to stay the signing of judgment, and 
judgment have been signed and execution issued in vacation, 
the defendant may apply to the court in the following term to 
have a suggestion entered on the roll to deprive the plaintiff of 
costs under a Court of Requests Act (n) : and the circumstance 
of the sheriff's having refused to certify does not preclude a 
party from applying for a new trial within the proper time ; and 
upon such application the court will judicially notice the re- 
cord (o). The plaintiff may tax his costs, sign judgment, and 
sue out execution immediately on the return of the writ, unless 
prevented by certificate or order under sect. 18 (p). And by 
sect. 19, all the provisions of the 1 Will. 4, c. 7, s. 1 (q), are 
extended to judgments and executions upon writs for the trial 
of issues under this act, so far as they are applicable thereto. 

As to the sheriff's fees on writs of trial, see ante, p. 105. Fee?. 

(0 Williams V. Evans, 2 M. & W. & M. 219. 

220; Lyddons v. Combes, 5 Dowl. (o) Angel v. Ihler, 8 M. & W. 

560. 600. 

(m) Lilley v. Johnson, 2 M. & W. (p) Nichollsr. Chambers, 2 Dowl. 

386. 693. 

(h) Johnson v. Beale. 5 M. & (?) Ante, 329. 
W. 276; see Baddley v. Oliver, 1 C. 



( 33G ) 



CHAPTER XV. 

OF THE EXECUTION OF PROCESS IN REAL ACTIONS (a). 

Sect. I. — Of Mesne Process. — Summons, Proclamation. — Attach- 
ment and Distress Infinite. — Grand Caj^e. 
II. — Of the Writ of View. — Trial : Grand Assize. 
III. — Execution. — Habere facias seisinam. 



Summons. The pvocess in real actions, to compel the tenant to appear, 
is of various kinds, according to the nature of the particular 
action. It is either — 1. Summons and grand cape, as generally 
in every prcecipe quod reddat ; 2. Summons, attachment, and 
distress infinite, as generally in every prcecipe quod faciat, or 
action in the realty; 3. Summons and resummons, as in assize 
of morl d' ancestor, juris utrum, and darrein presentment ; or 4. 
Attachment, as in an assize of novel disseisin and nuisance (6). 

The original writ in all real actions, with one or two excep- 
tions, as in assize of novel disseisin, or in a writ of deceit, is a 
writ of summons, by which the sheriff is commanded to summon 
by good summoners the tenants to appear in court according to 
the requisition of the writ, and that the sheriff shall have the 
names of the summoners at the return of the writ. 

Howexe- Upon the receipt of the writ, as in other cases, the sheriff 

must make his warrant to two bailiffs at least ; and the sum- 

(a) Although, by the statute 3 & 4 brought within the period during 

"Will. 4, c. 27, s. 36, all real and mixed which, by virtue cf the provisions of 

actions were abolished from the 31st that act, an entry might have been 

December, 1834, (with the exception made upon the land, if the right of 

of writs of right of dower, writs of entry had not been so taken away, it 

dower unde nihil hcibet, quare impedit, follows that cases still remain in 

and ejectment,) yet, inasmuch as by which, for nearly twenty years to 

the provisions of the 38th section, come, a real action may be brought 

whenever, on the 1st June, 1835, any for the recovery of land or rent. This 

person whose right of entry to any chapter has therefore been retained, 

land was taken away by descent cast, (6) Roscoe on Real Actions, 146 ; 

discontinuance, or warranty, might Finch's Luw, 343, 4, 5j Booth, 7; 

maintain a real action in respect of Com. Dig. Process, 
such land, the same may still be 



SUMMONS. 



337 



moners should he liberi and legates homines, so that they may chap. xv. 

give evidence of the fact of summons, if it be desired (c). The 1_1_ 

warrant repeats the mandatory part of the writ, viz. it directs 
tlie bailiff to command the tenant to render the land(rf); and 
unless he shall do so, to summon him to appear at the return of 
the writ, and it further directs the bailiffs, after summons made, 
to make proclamation according to the form of the statute (e). 
On receiving the warrant, the bailiffs must prepare a summons, 
which pursues the form of the warrant, and must serve it on the 
tenant on the land (/). 

It has been said that in practice no summons is now actually 
made in any real action, though the names of summoners are of 
course returned by the sheriff upon the writ {g). But this 
practice has been shown to be open to so many objections, that 
it appears to be essentially necessary that the summons should 
be actually and formally served {h). As to the time when the 
summons should be made, it ought to be served before sunset(i). 
And the summons must be made fifteen days before the return- 
day of the writ, and not merely fifteen days before the quarto 
die postijc). This is provided by the stat. 18 Edvv. 1, c. 15, 
which, in affirmance of the common law, declares that in sum- 
mons and attachment in pleas of land, the summons and attach- 
ment shall contain the term of fifteen days(0- As to the place 
where the summons should be made, it is said that in all actions 
for the recovery of land, the summons ought to be in terrd 
petitd(ni); if, however, the tenant appear, it is immaterial where 
he was summoned (n). Summons upon the land in demand 

(c) Roscoe, 147; Dalt. 153; 42;Dalt. 151. 

Booth, 4. For the due service of the {k) Brooke's Abr. Ley Gager, 57 ; 

summons must be proved by the sum- Booth, 24 ; Roscoe, 147. 

moners ; and when a trial is by wit- (/) Fifteen days, according to Sir 

nesses, the affirmative must be proved Edward Coke, were accounted a rea- 

by two or three witnesses ; Co. Litt. 6. sonable time, because a diela, or day's 

(d) By this is meant a render in journey, being twenty miles, that space 
court, and not in pais ; Beeclier's of time was sufficient to enable the 
case, 8 llep. 61b; Keilw. 116b; person summoned to make his appear- 
Booth, 7. ance in court on the day given, in 

(e) See Form, post, Append, chap. whatever part of England he might 
14, s. i. reside; 2 Inst. 567. 

(/) Id. ibid. (m) Com. Dig. Process (D 3); 

(g-) Booth, 5; note to 2 Saund. Vin. Ab. So.nmons (B) ; Finch's 

45 c. Law, 344; Dalt, 152. 

(/t) Roscoe, 147. {n) Dalt. 152; Bro. Sommons, 7 ; 

(i) Green v. Arderne, Cro. Eliz. Roscoe, 148. 



338 



PROCESS IN REAL ACTIONS. 



CHAP. XV. 
SECT. I. 



Proclama- 
tion. 



seems to be sufficient, whether the tenant, or any one for him, 
be there or not (o) ; and a prayer in aid may be summoned in 
the land demanded, ahhough it is not his freehold (p). But the 
sheriff cannot summon the party by a rent service, rent charge, 
common, reversion, or the like, for the soil is another man's 
freehold (g). Where the lands lie in several towns in one county, 
it seems that summons in one town is sufficient (r). 

It has been suggested, that, to avoid all objections, the most 
prudent mode of serving the summons upon a tenant in a real 
action is to serve him personally with the summons on the land 
demanded, or if he be not met with on the land, to summon him 
personally, and also to make a summons upon the land, by 
erecting a stick or wand, and affixing to it a copy of the sum- 
mons (s) ; and it will be proper to read over the summons to 
the tenant on serving him with the copy, for the summoners 
ought properly to name the demandant, the land in demand, and 
the day of the return (t). In summoning a defendant on a vvrit 
of quare impeditf it is said that the summons may be either at the 
church door, or on the person of the defendant (u). 

For the purpose of avoiding secret summonses, and in order 
to give convenient notice to the tenants of the lands, by the 31 
Eliz. c. 3, s. 2, it is enacted, " That after every summons upon 
the land, in any real action, fourteen days, at the least, before 
the day of the return thereof, proclamation of the summons 
shall be made on a Sunday, immediately after divine service 
and sermon, if any sermon there be, and if no sermon there be, 
then forthwith after divine service, at or near to the most usual 
door of the church or chapel of that town or parish where the 
land whereupon the summons was made doth lie, and proclama- 
tion so made as aforesaid shall be returned together with the 
names of the summoners, and if such summons shall not be 
proclaimed according to the tenor and meaning of this act, then 
no grand cape to be awarded, but alias and pluries summons as 
the case shall require, until a summons and proclamation shall 
be duly made and returned according to the tenor and meaning 



(o) 2 Saund. 43, n. ; 2 Inst. 253. 

(p) Dalt. 152; Bro. Abr. Sommons 
in terra, 16 ; Rol. Abr. Sommons 
(B)8. 

(9) Dalt. 151 ; Bro. Retorne, 124^ 
Ibid, Sommons, 14. 



(r) Allen v. Walter, Hob. 133. 

(s) Roscoe, 148. 

(0 Dalt. 151. See also 3 Chitty's 
PI. 624, 5. 

(u) 1 Brownl. 158; Booth, 226; 
but see Roll. Abr. Summons (A) 1. 



SUMMONS. 



339 



of this." If there be no church, it is said that the summons at chap. xv. 
the common law is sufficient (x) ; and so also when there is no ^^^^' '* 
sermon or prayers between the delivery of the writ to the sheriff 
and the return, the summons at common law is sufficient (y). 
And if a parish extend into two counties, and the land is in one 
county and the church in the other, the proclamation should be 
made in that church by the sheriff of the county in which the 
land lies (z). If the lands lie in several parishes, it seems that 
a proclamation made at the door of the church of one parish is 
sufficient within the act (a). 

When the summons has been served, which, as we have seen. Return to the 
must be at least fifteen days before the return-day of the writ, ^"'""'*'"'- 
the sheriff should return the writ, with the names of the pledges 
and summoner indorsed. The summoners are the persons who 
have actually made the summons, but the pledges are John Doe 
and Richard Roe (6). Any matter of excuse, of course, may 
be returned ; thus formerly it was a good return to the summons, 
that the sheriff did not summon the tenant on account of the 
demandant or plaintiff not having pledges (c); or he may return 
tarde(d): or that no one came to show the land to the sheriff (e). 
But it is not a good return to say that the tenant has yielded 
the lands (/). 

The sheriff should also return that he has made proclamation Remm that 

« , ,, ,. 7 /. r- 1 ti / \ proclamation 

or ttie summons " according to the form of the statute {g), has been 
without more ; but a return that the sheriff has proclaimed 
*' the contents of the writ" is insufficient, because he must pro- 
claim that he made summons of the land (h). If the proclama- 
tion of the summons be particularly set out in the return, it 
must appear then that the land lies in the parish in which the 
proclamation has been made, and that the proclamation was 
made after the summons (i). If the sheriff return that the pro- 
clamation of the summons was made at the church door, when 

(x) Roscoe, 149. (d) Roscoe, 150. 

(2/) Anon. Anders, 278; Vin. Abr. (e) Ibid. 

Summons (C 3). (/) Bro. Abr, Retorne, 84; Ros- 

(s) Ibid.; Ragister's case, Cro. coe, 150. 

Eliz, 472 ; Roscoe, 149. (g) See Form, post, Append, c. 14, 

(a) Allen v. Walter, Hob, 133 ; 1 s. \; 2 Saund. 43 a, note, 

Brownl, 126, S. C. (h) Allen v. Walter, Hob. 133 ; 1 

(6) See Return, post, Append, c. Brownl. 126, S. C. 

14, s. 1. (i) Furnis d. Waterhouse, 1 Mod. 

(c) Roscoe, 150; Booth, 6; Off. 197. 
Brev. 357. 

z 2 



made. 



340 PROCESS IN REAL ACTIONS. 

CHAP. XV. in fact it was not so made, it is not error (/c). The mode of 



SECT. I. 



taking advantage of such irregularity is by moving to set aside 
the grand cape, or the judgment by default (/). If the sheriff 
return the tenant summoned, when in fact he was not sum- 
moned, the party has several remedies : — First, by waging his 
law of non-summons, by which, if he succeed, the writ abates: 
secondly, the court, under such circumstances, would set aside 
a judgment by default; thirdly, the tenant may have a writ of 
deceit to recover the land ; fourthly, an action against the sheriff 
for a false return ; as the law will not suffer the tenant to lose 
his lands, unless he has received legal and formal notice of the 
demandant's claim (w). 
Wrii of In many writs in the realty which are not properly for the 

when it lies', demand of land, as in waste, quod permittat, secta ad molendi- 
num, &c., tlie process is by summons, attachment, and distress 
infinite {n). The attachment issues on the default of appearance 
of the tenant either on the summons, or on his default on the 
day of the adjournment of the essoign (o). The writ of attach- 
ment commands the sheriff that he attach the defendant by 
gages and safe pledges that he be, &c. 
How exe- The modc of executing the attachment is for the sheriff, on 

ciued. . . '^ 

the receipt of the writ, to proceed and attach the defendant, 
which he ought either to do by attaching his goods (p), or by 
compelling him to find pledges for his appearance («/) ; or, as it 
seems, by merely summoning him to appear, without attaching 
him either by pledges or goods (r). If the sheriff attached 
goods, he did not return pledges (s). Under the writ of attach- 
ment, the sheriff could only take the moveable goods of the de- 
fendant, and not a chattel real, or a thing fixed to the freehold, 
nor the horse upon which he was riding, nor the apparel with 
which he was clothed (t). And the sheriff ought to have re- 
turned the particular goods seized, and not chattels to the value 
of 10^. ; for if the defendant does not appear, the goods at- 
tached are forfeited (m), and he ought not to have taken goods 

(k) Collett V. Marsh, Cro. Eliz. (r) Ibid. 

371 , 397 ; Moor, 197, 349, S. C. (s) Com. Dig. Process (D) 6. 

(0 Roscoe, 149. (t) Roscoe, 151; Vin. Abr. At- 

(w) Roscoe, 147. tachment (B) ; 2 Inst. 254. 

(?j) Roscoe, 151. (u) Lawrence v. Netheral, Cro. 

(o) Ibid. Eliz. 13; Dyer, 199 a, S. C. ; Wells 

(p) Dalt. 155 J Roscoe, 151. v. Wigon, Carter, 224 ; and see Kitch. 

(q) Dalt. 155. on Courts, 157. 



ATTACHMENT AND DISTRINGAS. 341 

of great value, but a single thing sufficient to make the defend- chap. xv. 

ant appear (a-). After taking the goods, the sheriff is bound to -_!^ ' 

keep them safely, and not use them, for they are to be restored 
to the tenant if he appear (?/). Or the sheriff may leave the 
goods with the owner, taking an obligation of the owner of the 
goods for the delivery thereof, if the owner shall make default 
of appearance (2). The attachment should be made fifteen days 
before the return day (a). If the party be not summoned and 
attached, it is error, and the officer shall be amerced (6). 

On default of appearance on the attachment at the common Disiringas. 
law, a writ of distringas may issue, which commands the sheriff 
to distrain the goods of the tenant or defendant until he ap- 
pears (c) ; and by the statute of Westm. 2, c. 45, it was enacted, 
that if the tenant, after the first attachment returned, make de- 
fault, the grand distress shall be awarded. By the statute of 
Marlbridge, c. 7, in a writ of award, in which the process was 
summons, attachment and diitress infinite, a proclamation is di- 
rected to be made; and if the defendant do not appear, judg- 
ment may be given against him. And by the statute Westm. 2, 
c. 14; in a writ of waste, if the tenant make default at the 
return of the distringas, a writ of inquiry of waste done may 
issue, upon the return of which, judgment may be given. 

The sheriff may distrain either the moveable goods of the de- 
fendant or the issues of his land; and for this purpose he issues 
his warrant to two bailiffs, who are to execute the distringas. 
The sheriff may either keep the goods so distrained, or take 
money or an obligation for the appearance of the defendant or 
tenant, according to the exigency of the writ. The return of 
the sheriff is, that he has distrained the defendant by his lands 
and chattels, to which he adds the amount of the issues and the 
names of the manucaptors(<:Z). The issues returned must be 
reasonable (e). Where the sheriff returned mandavi ballivo, 
without also returning that the defendant had no issues in 
his bailiwick, the return was held bad, and the sheriff was 
amerced (/). 

(a) 2 Lutw. 1457. (rf) Dalt.223. 

{y) Dalt. 156. (e) Ihid. 

(z) Ibid. If) Bro. Retorn, 23. By the sta- 

(a) Dalt. 157 ; Co. Litt. 134 b ; lute 51 Geo. 3, c. 124, continued by 

Bro. Attach. 1, 5, 6. the statute of 57 Geo. 3, c. 101, but 

(6) Ualt. 157. which act has expired, and has not 

(c) Fitz. 59 b; Dalt. 160. been renewed, as far as I am aware, 



342 



PROCESS IN REAL ACTIONS. 



CHAP. XV 
SECT. I. 



If the tenant, having been duly summoned, neglects to ap- 
pear on the return of the writ to cast an essoign, or in case of 
Grand cape, an essoign being cast, neglects to appear on the adjournment 
day of the essoign, the next process for the demandant is a 
judicial writ of grand cape in manum nostrum; by which writ 
the sheriff is commanded that he take into the king's hands, by 
the view of good and lawful men in his county, the lands, &c., 
for the default of the tenant, and make known the day of the 
taking to the justices of Westminster ; and also that he sum- 
mon by good summoners the tenant, that he be before the jus- 
tices on the return day, to answer to the principal plea, and to 
show wherefore he was not before the justices according to the 
former summons ; or if the default be for not appearing on the 
adjournment day of the essoign, " To show wherefore he did 
not keep the day given him by reason of his essoign, before the 



the method of procuring an appear- 
ance in which the proceedings were 
summons, attacliment and distress, 
was, for the period it was in force, 
completely altered. By that act it 
was provided, that when the proceed- 
ing was by summons and attachment 
in any action against any person not 
having privilege of parliament, no writ 
of distringas should issue for default 
of appearance ; but the defendant 
should be served personally with the 
summons or attachment, at the foot 
of which should be wiitten a notice, 
informing the defendant of the intent 
and meaning of such service, as fol' 
lows : " To C. D. You aie served 
with this process at the suit of A. B., 
to the intent that you may appear by 
your attorney in his Majesty's court 

of at VVestminsler, at the return 

hereof, being the day of , in 

order to your defence in this action : 
and take notice, that in default of your 
appearance, the said A. B. will cause 
an appearance to be entered for you, 
and proceed thereon, as if you had 
yourself appeared by your attorney." 
In cases where it was shown to the 
court, or to a judge in vacation, that 
this could not be served, the court or 
judge may allow the plainiifF to sue 
out a writ of distringas to compel an 
appearance ; at the time of serving 
such writ of distringas, the officer shall 



serve on the defendant, or if he be not 
to be found, leave at the place of his 
abode a written notice in the follow- 
ing form : 

" In the court of , between 

A. B. plaintiff, and C. D. defendant. 
Take notice, tliat I have this day dis- 
trained upon your goods and chattels 
for the sum of forty shillings, in con- 
sequence of your not having appeared 
by your attorney in the said court at 
the return of a writ of , return- 
able there on the day of ; 

and that in default of your appearing 
to the present writ of distiingas at the 

return thereof, being the day of 

, the said A. B. will cause an 

appearance to be entered for you, and 
proceed thereon as if you had your- 
self appeared by your attorney." 
E. F. 
(the name of the sheriff's officer.) 

To C. D., the above named defend- 
ant. 

Upon an affidavit of the personal 
service of such summons or attach- 
ment, and notice written on the foot 
thereof as aforesaid, or of the due 
execution of such distringas, it may 
be lawful for the plaintilf to enter a 
common appearance for the defendant, 
and to proceed thereon as if the de- 
fendant himself had entered an ap- 
pearance for himself. See Tidd's 
Prac. Ill, 8th edit. 



GRAND CAPE. 



343 



justices at Westminster, &c., and that the sheriff have there the chap. xv. 
names of those by whose view he shall do this, the names of the _ s^^'^' ^' _ 
summoners, and the writ(^)." 

The sheriff's duty in executing the grand cape is, first, by J^°^"*" 
the view of honest and lawful men of his county, to seize the 
tenements into the king's hands ; secondly, to summons the 
tenant. For this purpose, the sherifi' should make his warrant 
to the bailiff (/<) to execute the writ : in the execution thereof 
the bailiff should take with him four inhabitants of the county, 
two as viewers, and two as summoners. The process of taking 
the tenements into the king's hands is a mere formal proceeding ; 
the sheriff in the presence of the viewers verbally seizing them 
into the king's hands (i). As early as the time of Bracton, the 
seizure of the land on the grand cape was merely formal, and 
the tenant was left in possession (/c) ; and where in dower, upon 
a writ of grand cape, cape ia manum nostrum tertiam partem 
rectorice, the sheriff took the tithes, and carried them away, the 
court said that this was not such a seisin as was intended by 
the writ, and that the sheriff ought to seize generally, but to 
leave them where he found them (/). The summoners should 
then proceed to summon the tenant in the same manner as upon 
the first summons (m). The grand cape must be served at least 
fifteen days before the return day ; it is not sufficient to serve 
it fifteen days before the quarto die j)ost (ji) . 

The sheriff's return is, that he has taken into the king's hands Return. 
by the view of A. B. and C. D., good and lawful men, &c., the 
lands mentioned in the writ, and that he has by E. F. and G. H. 
given notice to the tenant to be before the justices at Westmin- 
ster at the time and place in the writ mentioned (o). The 
names of the viewers and summoners ought to be returned by 
the sheriff, but if the tenant appears and pleads, the omission is 
not error (p). 

(s,) Roscoe, 165. 1 Leon. 92; and see Jenk. Cent. 122; 

(/i) See form, ;jost, Append, chap. Atkins v. Gage, JVoy, 152; Keilw, 

14, s. 1. 117 a. 

(i) Dalt. 151, 153; Roscoe, 166. (m) See ante. 337. 

It is said by Lord Coke that the per- (n) Roscoe, 165; Bro.Ab. Grand 

nnrs were the persons who seized the cape, 29, 36; Booth, 22. 
land; Co. LiU. 259 b. (o) See form, post. Append, c. 14, 

(k) Bract. 365 b. s, 1 ; and 2 Saund. 43, note. 

(0 Roscoe, 166 ; Michel! v. Hyde, (p) Bro. Abr. Retorn de Br. 86. 



344 PROCESS IN REAL ACTIONS. 



CHAP. XV. 

SECT. II. 



Section If. 
Writ of View — Trial. 

Writ of view. By the writ of view the sheriff is commanded that he cause 
the tenant to have a view of the lands, &c. demanded, and 
that he appoint four knights of those present at the view to be 
before the justices at Westminster on the return day to testify 
such view, and that he have there the names of those knights 
and the writ, 8cc.(q). In what real actions a view may be de- 
manded and will be granted, and when the demandant can 
counterplead the view, may be seen in Mr. Roscoe's Treatise on 
Actions relating to Real Property, page 247 to 253. When a 
view is demanded and granted, the demandant, to facilitate the 
proceedings, as the view is generally demanded for delay, may 
sue out the writ(r). 

How exe- The sheriff must give notice to the viewers (who need not 

culed. . ° _ ^ . 

really be knights) and to the tenant, of the time when the view 
will be given, which may be at any time before the return of the 
writ of view. It is the duty of the demandant to point out the 
lands to the sheriff, in order that the latter may show them to 
the party (s). It is recommended that the demandant's agent 
should serve the tenant or his attorney immediately with an ap- 
pointment corresponding with the one made by the sheriff. The 
sheriff's summons should be served upon the tenant himself, if 
resident within the county, but if not, it can only be left upon 
the premises demanded, in which case the notice to the attorney 
will be requisite. The demandant must be able to point out 
with accuracy the land, &c., demanded, and in exact conformity 
with the writ (t). 

In an action for rent, the land out of which it issues may be 
put in view (i<\ So in quod permittat of common appendant, a 
view may be had of the land in which the common is, and also 
of the land to which it is appendant (x) ; and so in a quod per- 
mittat of a way, a view may be had of a wall which obstructs 
the way, and of the way and of the land which is appendant (y) ; 
so also in a curia claudenda for not inclosing a house adjoining 

(?) Roscoe, 253, (w) Rol. Abr. View (Z\ 2. 

(r) Ibid. Ix) Bro. Abr. View, 10. 

(«) Ibid. (y) Ibid.; Brook t). Groves, Hutt. 

(0 3 Cfiit. Plead. 643^ 28. 



WRIT OF VIEW. 345 

to the house of the plaintiff, the defendant shall have a view of ckap. xv. 
both the houses (s). If land is demanded, and the view is ^^*^^' "' 
granted, every part of the land shall be put in view ; and so 
when the demand is of a house, every parcel of the house shall 
be viewed (a) ; but in making the view it is not necessary to 
show every acre, for the demandant may show the field, and say 
that he claims so many acres therein, and then another field, 
and so on (6). If the demand be of a moiety of a manor, the 
tenant shall have view of all the manor; but in making view of 
a manor, the site, with tlie appurtenances, shall be put in view, 
and not every parcel of the manor (c). In assize of an office, 
the place where it is exercised shall be put in view of the jury. 
Thus in assize of the office of one of the filacers of the Common 
Pleas, the place where the plaintiff sat when he was first ad- 
mitted was put in view (d). 

If the tenant or his agent attends, and the sheriff makes a Return, 
view, the sheriff should return that he has caused the tenant to 
have a view of the lands, &c. demanded. If neither the tenant 
nor his agent attended to take the view, the sheriff should make 
his return accordingly (e). If the demandant did not come to 
show the lands, this will be a good return (/). 

In certain actions the jurors and not the tenant shall have the view by the 
view. In such action the sheriff is by the writ commanded that ^"''^' 
he summon a jury to view the premises and to make recognition, 
&c. The sheriff accordingly issues his summons to the jurors, 
six of whom at least ought to view the land(^). The land is 
then shown to the jurors that attend. 

The trial and jury process are the same in real actions as 
in personal actions in the Common Pleas, excepting in the writs 
of right. 

In a writ of right, when the mise is joined on the mere right, Trial by iiie 
the trial must be by the grand assize, and not by a common jury. ^"" 

(z) Rol. Abr. View (K). appointed. 5em6/e, it is not sufficient. 

(a) Rol, Abr. View (Z) 14; but Ante,3i3. 

see 1 Leon. 267. (/) By not attending, the tenant 

(b) Roscoe, 254 ; Bro. Abr. View, loses his view ; if the denriandant do 
111. not attend, an alias writ of view may 

(c) Roscoe, 254. be sued out ; Roscoe, 254. 

((0 Roscoe, 254; Dyer, 114b; 2 (^) Roscoe, 254, 255. Thegrant- 

Rol. Abr. 731, 1. 14 ; Bro. Abr. As- ing a view in waste is now regulated 

size, 2. by 4 Anne, c. 16, s. 8, and 3 Geo. 2, 

(e) Qutcre whether it is sufficient to c. 25, s- 14, 
say that he did not attend at the time 



346 PROCESS IN REAL ACTIONS. 

CHAP. XV. Indeed in such case, even by consent, the court will not allow 
' the right to be tried by a common jury (//). But when the mise 

is joined on any collateral point, the trial is by a common jury(i). 
The writ of right in either case may be tried at nisi prius{k). 
By the writ to summons the grand assize, the sheriff is com- 
manded to assemble four good and lawful knights of his baili- 
wick, girt with swords, to be in court on a general return day; 
or if the trial is to be at nisi prius, in the alternative, that the 
knights should be before the justices, on, &c., or before the jus- 
tices of assize, &'c., if they shall first come to N., &c., to choose 
the grand assize {I). 

The duty of the sheriff consists merely in summoning the four 
knights ; nor is he obliged to do this before the commission day 
of the assizes, but may summon the knights from the grand jury 
at the assizes ; having done this, his duty is at an end, for it 
is not part of the sheriff's duty to procure the knights to be 
sworn (?h). If there be not four knights in the county, the she- 
riff may return others (h). 

If the four knights, after being summoned, do not appear, 
the demandant may have a habeas corjiora quatuor militum in the 
alternative (o). If the sheriff have not returned the writ, an 
alias maybe issued (^j). When the four knights appear, they 
are sworn lawfully and truly to choose twenty knights girt with 
swords, who best know and will declare and say the truth be- 
tween the parties ; these recognitors need not in fact be knights. 
It seems {q) that the four knights may be challenged ; if one or 
two only be challenged, then the residue may proceed to name 
the recognitors ; if these be challenged, a new writ must issue 
to choose four other knights. Out of themselves and the re- 
cognitors the four knights choose a jury, upon which a venire 
facias issues as in other actions (?). 

(h) Gallon v. Harvey, 1 Bos. & persons returned as knights were not 

Pul. 192. in fact knights, and the qualification 

(i) Roscoe, 297. of persons to be returned was dis- 

{k) Id. ibid. ; Penrose v. Maynard, cussed. 

1 Taunt. 415; 2 Saund. 45, note. (o) Dyer, 79b, 104a; 2 Saund. 

(/) As to the form of the writ of 45 k. 

summons where the trial is at nisi (p) Tyssen v. Clarke, 3 Wils. 562. 

priiis, see Roscoe, 297, 298. (q) Per Coke and Littleton, .Ts., 

(m) Windle v. Ricardo, 3 Moore, 15 Edw. 4,1 •, Co. LiU. 294 a, conira; 

249 ; 1 Brod. & Bing. 17, S. C. Roscoe, 299. 

(7i) Co. Litt. 294 a. See 2 Saund. (r) See Roscoe, 298, 299. See as 

45 i, note. Dyer, 247 b, margin. In to the number of recognitors, ibid, 298, 

a recent case of Angell v. Angell, Hil. note (g). 
1826, it was objected that the four 



HABERE FACIAS SEISINAM. 347 

CHAP. XV. 

Section III. _sECT^m. 

Execution. — Habere facias seismam. 

The execution in most real actions is done by writ of hahere Execmion ia 
facias seisinam (5), by which writ the sheriff is directed that he 
cause the demandant to have seisin of the lands which he has 
recovered. When the writ shows the certainty of the thing re- 
covered, the demandant may, without executing a hab.fac. sets., 
make an entry upon the lands recovered ; and this entry will 
execute the judgment and vest the freehold in the demandant (f). 
So where the action is for the recovery of a rent or common, &c. 
in certainty, the demandant after judgment may distrain without 
issuing any writ of execution (?<). Either within or after the 
year after judgment, the demandant may enter on the tenant (a:), 
or his he'ir{y). If a stranger enters and dies seised, the de- 
mandant may enter within a year after judgment (2). 

But where the certainty of the lands demanded does not ap- Hab.fac. 
pear, as in dower, the demandant cannot enter, but must sue ntcesTary" 
out a habere facias seisinam (a). This writ may be taken out at 
any time within a year and a day after judgment ; if the tenant 
die after judgment, execution may be sued against his heir, or 
against the issue in tail, whether the recovery be upon a real 
title (&), or by common recovery (c). So if the demandant die, # 

his heir shall have execution {d). 

The writ of habere facias seisinam is executed nearly in the 
same manner as the writ of habere facias possessionem : in like 
manner as on a hab. fac, poss. the officer may break open the 
outer door of a house to deliver seisin to the demandant (<?). 
Upon a hab. fac. seis., the sheriff should give actual possession 
of the land to the tenant by turning the tenants off the pre- 
mises (/). Where the writ requires the sheriff to deliver seisin 

(s) Roscoe, 341 : Co. Litt. 34 b; seisin by the sheriff will not reduce 

Coin. Dig. Execution (A 1). the demand to a certainty, as where 

(t) Co. Lilt. 34 b ; Roscoe, 341. in dower a woman recovers against 

(m) Id. ibid.; Com. Dig. Execu- one of two tenants in common the 

tion (A 1). third part of a moiety ; Roscoe, 341. 

(x) Roll. Abr. Execution (B). (b) Roscoe, 342. 

(y) Id. ibid. Although several de- (c) Id. ibid. ; Shelly 's case, 1 Rep. 

scents have been cast in the blood of 106 a ; Co. Lilt. 361 b ; Dyer, 376 b. 

the tenant; id. ibid (d) Com. Dig. Execution (E). 

(z) Rol. Abr. Execution (B); (e) Semayne's case, 5 Rep. 91b. 

Com. Dig. Execution (A 1). (/) Uilb. P:ject. 108, 2nd edit. ; 

(a) Even where the delivery of Upton v. Wells, 1 Leon. 145. 



348 PROCESS IN REAL ACTIONS. 

CHAP. XV. of several messuages in the possession of the same person, it is 
^^^'^' "'• sufficient if the sheriff delivers seisin of one in the name of 
all(g') ; but where the houses, &c. recovered are in the posses- 
sion of several, it is not sufficient to deliver seisin of one in the 
name of all, but the sheriff ought to go to each in particular (/«)• 
It is in delivering seisin as in delivering possession, where the 
sheriff is to deliver seisin of so many acres, they shall be com- 
puted by the custom of the county and not by statute measure (i). 
Upon a habere facias scisinam in dower, if the sheriff offer to 
deliver seisin and show in certainty the parcels which make the 
third part by metes and bounds in severalty, the demandant, 
though she refuse such seisin, may afterwards enter (^). In 
dower, on a hab. fac. sets, against several purchasers, the court 
will order the sheriff to charge the purchasers proportionably (l). 

Poundage For cxccuting a writ of habere facias seisinam, the sheriff we 

have seen (m), by the stat. 3 Geo. 1, c. 15, s. 16, is entitled to 
1*. in the pound of the annual value of lands where the whole 
does not exceed 100/. ; and 6d. in the pound for every IZ. per 
annum over and above the yearly value of 100/. 

If the demandant has once had execution, he cannot after- 
wards have execution again ; and therefore where the sheriff 
returns upon hab. fac. seis. execution done, an alias hab. fac. 
seis. cannot issue (??). So if the fee be executed in the ancestor, 
it shall never be executed again by the heir (o), or a fee tail by 
the issue in tail {p). 

ig) Rol. Abr. Execution (H 1); (k) Dyer, 278 b. 

Com. Dig. Execution {A3); Floyd (I) 1 Freem. 227. 

D. Bethel, I Rol. Rep. 421. (in) Ante, 

(h) Rol. Abr. Execution (H 2). (n) Com. Dig. Execution (A 3); 

(0 Roll. Abr. Execution (H7); Dyer. 278 b. 

1 Rol. Rep. 421. Sed vide Dyer, (o) Roll. Abr. Execution (F), 3,4. 

47 b, margin, contra. (p) Id. Ibid. 



lelurn. 



( Sid ) 



- CHAPTER XVI. 

OF THE EXCHEQUER WRITS. 

Sect. I. — Of the Nature of the Sheriff's Office as Collector of the 
Revenue of the Croyvn. — Of the ordinary Exchequer 
Process ; Great Roll, the Summons of the Pipe, 
Summons of the Green Wax, Ft. Fa. against Cler- 
gymen. — Distringas against Collectors of Taxes, 
against Parishes, against Accountants ; Set. Fa. on 
Port Bonds. 
II. — Of the Writ of Extent. — Nature and Form of the 
Writ. — How executed, — Arrest of the Defendant. — 
Seizure of Defendant's Goods. — Goods, from what 
Time hound, Priority between the Crown and the 
Subject, Goods distrained, ^-c. — Priority between 
several Extents; when the Crown has a specific Lien. 
— Lands, how seized; from what Time hound; Debts, 
how taken, — Of the holding of the Inquisition. — 
Sheriff's Return, Liabilities, ^'c. 
III. — Poundage on Crown Writs, — Statutes regulating the 

Poundage. — Decisions thereon. 
IV. — Of the Sheriff's Accounts, 



We have seen that the sheriff, by virtue of his office, is the or the nature 
queen's bailiff, and receiver of the rents and debts of the crown ritr's oiiice 
within his bailiwick. By his oath of office, the sheriff swears the revenue 
'* that he will promote her majesty's profit in all things that °' ^ '='^°w"' 
belong to the crown ; that he will not assent to decrease, lessen, 
or conceal the queen's right, or the rights of her franchises; and 
whensoever he shall have knowledge that the rights of the crown 
be concealed or withdrawn, be it in lands, rents, franchises, 
suits, or services, or in any other matter or thing, he will do his 
utmost to make them be restored to the crown again ; and if he 



350 OF THE EXCHEQUER WRITS. 

CHAP. XVI. may not do it of himself, he will certify and inform some of her 
^^'^'^' ^' majesty's judges thereof." 

Formerly tlie sheriff ex officio had the power to levy all the 
revenues of the crown without writ. This revenue is divided 
into fixed and casual (a) ; the former of these were called " vis- 
contiels," and for tlie amount of these the sheriff was account- 
able to the exchequer, whether received by him or not (6) ; and 
by the statute of 1 Hen. 4, c. 11, it appears that the sheriffs 
were charged with the ancient farms of the counties, and that 
they fermed the counties ; to this Dalton (c) attaches a qucere, 
" what these farms of the counties were." It would seem that 
they were the fixed revenue of the crown, which the sheriff 
farmed for a certain sum, or accounted for as bailiff; but whe- 
ther he accounted as bailiff or farmed, he was charged in the 
exchequer a sum certain for the viscontiels {d). These fixed 
revenues of the crown, or farms, or viscontiels were, 1st. The 
rents of the tenants of the demesnes of the king. 2nd. Gror.s 
ferms of lands, not parcel of the county, let to farm to cities, 
boroughs, or particular persons, or reserved after the ferm of 
the county was ascertained. 3rd. Common fines upon towns 
for hcaupleader, for suit, ward, not attending the torn, &c., re- 
duced to a certainty. 4th. Arrentations o{ assarts in wastes and 
forests, ascertained by justices in Eyre. 5th. Crementum comi- 
tatHs, or improvements of the king's rents, or other small rents 
thrown into the corpus comitalus (e). The casual revenue, called 
projicuum comitates, consists of the fines, forfeited recognizances, 
and other debts due to the crown (/). And by the statute of 4 
Hen. 5, c, 2, it was enacted, " that all sheriffs of England shall 
have allowance upon their accompts, by their oaths, of things 
casual, as of estreats that be not in ferm, nor in demand ; but of 
all such things that be or run in yearly ferms, or yearly de- 
mands, they shall be charged to the king (envers le roi), as the 
sheriffs have been charged in that case in times past." 

By the statute of the 27 Edw. 1, c, 2, it was ordained " that 
sheriffs shall not be charged of any issues to be levied, nor shall 

(a) Hale's Sher. Ace. 34 j Dalt. 2; Dalt. 49. 

48, 49. (e) Com, Dig. Viscount (G 1) ; 

(b) Dalt. 49, 59. Gilb. Exch. 86 ; Dalt. c. 8 and 9. 

(c) Dalt, 48. (/) Gilb. Exch. 98; Com. Dig. 

(d) See Gilb, Exch. 76 et seq.; Viscount (G 1). 
Hale's Sher. Ace; stat. 4 Hen. 5, c. 



sheriff's duty in collecting crown debts. 351 

levy any before they pass out of the exchequer, there to be chap. xvi. 
delivered by the estreats of the justices." Fines, debts due on . 
estreated recognizances, or otherwise due to the crown, could 
not be levied by the sheriff without a writ from the Court of Ex- 
chequer for that purpose (g-). In a recent case(/i), the propriety 
of the sheriff's levying fines by obtaining a writ of levari facias^ 
without the prior sanction of the law officers of the crown, was 
discussed, and it was decided that the solicitor-general having 
subsequently adopted the acts of the sheriff, the issuing of, and 
the levy by virtue of, the levari facias were not irregular ; and 
Holroyd, J., there said, " The sheriff is the king's officer, and it 
is his particular duty to take care of the king's revenue, and 
amongst other sources of it, the fines due to the crown. The 
sheriff in this case was justified in suing out the process of the 
court, in order to enable him to levy the fine upon the property 
of the person convicted." Sufficient has been here stated to 
show the nature of the sheriff's duty as collector of the king's 
revenue. To the historian or the antiquarian, the authorities in 
the margin (i) will yield the only information to be met with on 
this subject ; from these the author of this work has collated 
the short account thereof above given. 

It is to be observed, however, that by the statute referred to in 
a former part of this work (j), the 3 & 4 Will. 4, c. 99, s. 12, it has 
been enacted, (after reciting " that the present mode of managing 
and collecting certain quit rents and vicecomital or viscontiel 
rents due to his majesty, and the present mode of accounting for 
and paying post fines on alienation of lands and other heredita- 
ments, have been found disadvantageous to the public service, 
and inconvenient and troublesome to sheriffs"), that after the 
10th October, 1833, no sheriff shall receive or be chargeable with 
the collection and receipt of quit rents, vicecomital or viscontiel 
rents, and other rents or payments issuing out of or payable to 
his majesty, in respect of any honours, manors, lands, tenements, 
or hereditaments in England or Wales ; but the same (except 
such as shall be released pursuant to the provision next herein- 
after contained) shall hereafter be considered as part and parcel 
of the land revenue of the crown, and shall be under the care, 

{g) Dalt. 58. Sher. Ace. ; Gilb. Exch. 76 et seq.; 

Ih) Rex V. Woolfe, 1 Chit. Rep. Madd. Exch. 

583. (J) Ante, p. 15. 
(»■) Dalt. Sher. c. 5 to c.l9 j Hale's 



352 OF THE EXCHEQUER WRITS. 

CHAP. XVI. management, and direction of his majesty's Commissioners of 
^^^^' '' Woods, Forests, and Land Revenues, who shall have and exer- 



cise the same powers and authorities for collecting and enforcing 
the payment thereof as are given to or vested in them for col- 
lecting and enforcing the payment of any other part of his 
majesty's land revenue by any act or acts now in force con- 
cerning the same. The 13th section then, after reciting that 
many of tlie said rents are very ancient, and have become ob- 
solete, and it is not known out of or from what hereditaments 
and premises the same are issuing and payable, so that payment 
thereof cannot be enforced, empowers the Commissioners of the 
Treasury, by warrant under their hands, to remit, release, and 
discharge all or any of the same rents, and the arrears thereof, 
or any part thereof. 
The common There are certain crown processes, which have issued for 
fn^^ut^oTlhe ^o^^> ^"*^ ^'^'"^ issue twice a year to the sheriff of each county, to 
Exchequer, collect the crown debts ; there also issue the summons of the 
pipe, and also the summons of the green wax, to the sheriff to 
appear in the Exchequer before the chancellor and barons on a 
day prefixed, to have the monies collected. 
The different These crown processes, which issue to the sheriff immediately 
on his entrance into office, are, 1st. The great roll of the pipe. 
Sndly. The summons of the pipe. Srdly. The summons of the 
green wax. 4thly. A process to levy on clergymen by name 
for arreai's of tenths or first fruits. 5thly. A process, called the 
mortuus process, against the executors and administrators of 
deceased clergymen. It may be necessary to describe the na- 
ture of these several writs, and the manner in which they are 
to be executed. 
The great The great roll, or long writ, is in the nature of an extent, to 

levy various sums from the persons mentioned in the schedule. 
These are sums due on estreated recognizances (Jc), for fines set 
on jurors, and various other sums particularly specified. A great 
proportion of the sums in the long writ have been due, and 

(^) By Stat. 3 Geo. 4, c. 46, and 4 same. The Court of Exchequer, when 

Geo. 4, c. 37, it is enacted, that after such recognizances are estreated there, 

forfeited recognizances taken before has lost its jurisdiction by those sta- 

justices of the peace or sessions and tutes ; Rex v. Hanliin, 1 M'Clel. & 

fines there taken have been testified to Younge,27 ; but see Expaite Pellow, 

the clerk of the peace, the quarter 1 M'Clel. 111. 
sessions may issue process to levy the 



writs. 



roll 



sheriff's duty in collecting crown debts. 353 

inserted in the great roll to each succeeding sheriff, for many chap. xvi. 

years, although regularly year after year n'lhillcd. On this the . . 

sheriff is to levy as much as he can, and therefore on all the 
rolls for a few years back he should send warrants to bailiffs, 
directing them at the same time to make every exertion to levy 
what they can. The sheriff should likewise keep an account of 
all the warrants that he has issued, to be prepared to answer on 
his apposals according to the bailiff's return : and therefore he 
should issue warrants on the rolls as far back as he is likely to 
be examined. The under-sheriff summons a jury to inquire 
whether any of the persons in the schedule of the great roll have 
any goods, chattels, lands, and tenements, whereof the debts 
charged could be levied. This inquisition (/) is a mere matter 
of form, as no evidence whatsoever is produced before it; 
indeed, it is said that the under-sheriff sometimes returns the 
inquisition without calling the jury together. And this inquisi- 
tion, together with the return, will be a discharge to the sheriff 
on the great roll. 

The summons of the pipe contains merely an account of the The summons 
fee-farm rents due to the crown within the sheriff's bailiwick, and 
for which he is answerable. For all the rents in this roll the 
sheriff is answerable in his accounts to the crown, whether he 
can levy them or not ; the sheriff cannot nihil any of these rents, 
although in many instances there is no such rent due to the 
crown. The sheriff sends his warrants (m) to bailiffs to levy 
these rents. The process is sent back with the other processes, 
but the sheriff makes no return to it. In his accounts he an- 
swers for all these rents. The under-sheriff should, in his book 
of accounts on the crown process, enter all the sums in the sum- 
mons of the pipe. 

The summons of the green wax is a process to levy estreats Summons of 
and other debts of late date («), also "post fines, or fines in the wax!"^*^" 
Common Pleas. The sheriff made his warrant hereon as on the 
last process, but he made no return thereto. He kept a copy 
in his book of accounts, and either totted or nihilled the estreats, 
&c. ; but he totted the j^ost fines, although never received by 
him ; however, they were allowed him in some way in the ex- 

(0 See Return and Inquisition, post, c. 15, s. 1. 
Append, c. 15, s. 1. 0') These, if not levied, are after- 

(^»i) See NVariant, pout, Appendix, wards put up;in llie great roll. 



354 



OF TIIR EXCHEQUER WRITS. 



CHAP. XVI. 

sicr. I. 



Fieri facias 
against cler- 
gymen for 
tenihs. 



Process 
against tlie 
representa- 
tives of (le- 
ceaseil cler- 
gyiiitn. 



Distringas 
against col- 
lectors, &e. 



Distringan 
against col- 
lectors. 



chequer. All the sums mhUled on the summons of the green 
wax were generally carried in the succeeding year upon the great 
roll (o). However, since the 3 & 4 Will. 4, c. 99, s. \'>, the she- 
riffs of England and Wales (excepting in the county palatine 
of Lancaster) are no longer chargeable with any lines called 
'pre fines or post fines, which are to be received by the receiver- 
general of alienation fines at the alienation office, and paid and 
applied by him as therein mentioned. 

This process is executed in the same manner as any other writ 
o^ fieri facias ; but the parties, for the most part, pay the sum 
on demand. 

This is executed in the same manner as the last ; but on this 
process there are debts against clergymen who have been dead 
a hundred years and more. The sheriff holds an inquisition as 
on the long writ (^), for the purpose of his discharge on his 
accounts as to the charges that are hopeless. 

The above are the ordinary exchequer processes, which are 
invariably sent to the sheriff of each county ; besides these, there 
are processes which the sheriff generally receives against collectors 
and receivers of the revenue, and against parishes, and also writs 
o^ scire facias on port bonds. These are, 1st, Distringas against 
collectors for arrears of taxes ; Sndly, Distringas against inha- 
bitants of parishes for arrears of taxes ; Srdly, Distringas against 
persons who are accountants of the crown, or against their exe- 
cutors, for taxes or money imprest, viz. receivers-general, agents, 
paymasters, &c. ; 4thly, In the coast counties, writs of scire facias 
against persons who have entered into bonds, generally called 
port bonds. 

If the collector is to be found, and has received the insujier, 
or is likely to receive it before the time fixed for the sheriff's 
apposal, he should be called upon to pay it ; and if he pay it, 
or be a responsible person, it is usual to return that he has 
received the money; but if the solvency of the collector be 
doubtful, and he has received the insupcr, strictly speaking, the 
sheriff should distrain, and return large issues. Although the 
sheriff on all these writs is ordered that " he should distrain all 
and every the goods and chattels, &c., so that nobody inter- 
meddle, &c.," yet it is his duty to levy, indeed by his oath he can 
only levy, reasonable issues : one shilling in the pound is cora- 
(o) Gilb. Exch. 108. (p) See form, post, Appendix, c. 15, s. 1. 



sheriff's duty in collecting crom'n debts. 355 

monly the amount of the issues distrained for. But if the sheriff chap. xvi. 
is not informed that the insu^per lias been received by the col- ^^_lil_ 
lector, or the collector is not to be found, he should return nihil(^q) ; 
indeed, this writ is used as the first process against parishes ; as 
they are answerable for collectors, the distrhigas against the 
parish only issues on a return of the nihil against the collector ; 
and as long as the sheriff returns issues on the distringas against 
the collector, the process cannot issue against the parish. 

If the parishes pay the insuper to the sheriff, which, generally mstrincias 
speaking, they do, the sheriff should make his return accord- rishes. 
ingly, and thereupon a record of payment is made and drawn 
down on the pipe to be set against the sheriff. If the sheriff 
cannot obtain payment from the parish, he should distrain, and 
return issues to the value of one shilling in the pound (?•). 

Issues to the amount of one shilling in the pound, that is to Distringas 

7 I • 1 1 1 « T • 1 1 against ac- 

say, reasonable issues, should be distramed and returned on this conmants, 
writ. If the person mentioned in the schedule, after due dili- 
gence, cannot be found, the sheriff should return nihil, at the 
same time he should use due diligence in trying to discover all 
persons named in the schedule (s). 

The sheriff should direct his warrant to two bailifis to give Scire fadas 
notice to the parties to appear to show cause, &c., according to bomis. 
the terms of the writ. The bailiffs should make a regular return 
to the sheriff either that they have given notice to the defendant, 
or that they could not do it. In conformity to the answer of 
his bailiffs the sheriff makes his return to the court (t). 

Having now treated of these regular processes to the sheriff 
from the exchequer, the execution of which is well known to the 
professional men in all counties, we proceed to a more detailed 
notice of the writ of extent. 



Section II. 

Of Extents. 

The writ of extent is a writ of execution against the body, of(hena- 
lands, and goods, or tl»e lands and goods, of the crown debtor, ^l^ft °*^ ^^^ 

(q) See Return, post, Appendix, (») See Return, pust, Appendix, 

c. 15, s. 1. c. 15, s. 1. 

(r) Id. ibid. (() Id. ibid. 

A A 2 



356 OF THE EXCHEQUER WRITS. 

CHAP. XVI. It is an ancient prerogative writ for obtaining satisfaction of 
_SECT . II. jg][jtg originally due or assigned to the queen, or found due to 
the queen on an inquisition (a). Until the statute 33 Hen. 8, 
c. 39, ss. 50, 55, the extent could not have issued to take the 
lands in the first instance, but only upon the contingency of there 
not being sufficient chattels of the defendant to satisfy the debt ; 
for by Magna Charta(jb), the king and his bailiffs were restrained 
from seizing any land or rent for any debt, as long as the pre- 
sent chattels were sufficient to pay the debt. It was formerly 
usual to issue an extent to levy on the lands of the debtor, pro- 
vided the chattels were not sufficient : this writ is said by Lord 
Coke(c) to have been introduced after the statute of Hen. 8 ; 
but it is the opinion of Chief Baron Gilbert that it was used 
before that statute (d) ; which would seem to be the better opi- 
nion, as the writ in that form seems to have been framed pre- 
cisely to meet the prohibition in Magna Cliarta. However, 
since the statute of Hen. 8, the practice has been to issue 
the writ of extent, to levy the debt on the body, lands, and 
chattels of the crown debtor absolutely, without any previous 
inquisition touching the goods (e). But it would appear that 
a writ of extent against the land only of the crown debtor, before 
it appears by record that there are no chattels to satisfy the debt, 
is irregular (/). 
Of ihe differ- In what cases the courts will, and in what they will not, grant 
extents/ <^ writ of extent, and the practice of the Court of Exchequer in 
granting the writ, are matters which do not belong to a treatise 
on the duty of the sheriff in executing it ; for if the writ be 

(a) The writ against tiie lands of Charta, tlie body, lands, and goods of 

an heir.onajudgmentobtained against the king's debtor were liable to the 

him on the bond of his ancestor, and king's execution ; but see West on 

the writs of execution on a statute sta- Extents, chap. 1. 

pie or merchant, are also called extents. (c) 2 Inst. 19 ; West, 76. 

The word extent strictly refers to land (d) Gilb. Exchequer, 127, 128; 

only; Palmer's case, 4 Rep. 74. The West, 79. 

first mention of it to be found is in the (e) West, 73, 80. 

statute of elegit, 13 P:dw. 1, (Westm. (/) Rex v. Lambe, M'Clel. 402, 

2), c. 18, and the stat. 13 Edw. 1, 416. On an extent against both lands 

Stat, de Rlerc. (Westm. 1). Tiie crown and goods, where the goods seized are 

cannot recover a debt of record by an sufficient to satisfy the debt, the court 

information in the nature of a popular will not make an order for the sale of 

action of debt, but only by extent, sfi/t' tiie lands; Hex v. Hopper, 3 Price, 

facias, or l)y filing an information on 40; West, 107, 225, S. C. Indeed 

the record itself; Att.-Gen. v. Sewell, in such case the Imds sliould not be 

4 Rl. & W. 77. seized by the sheriff; West, 79. 

{!>) At common law, before Magna 



OF EXTENTS. 



357 



issued to the slieriflT, he is bound to obey it, provided the court chav. xvt. 
from which it issued had jurisdiction, without questioning the ^^^^'"' 
regularity of the proceedings (g-) ; it may suffice, therefore, to 
notice shortly the different kinds of extent. 

Writs of extent are of two kinds : extents in chief, or in aid. 
An extent in chief is an adverse proceeding by the queen for the 
recovery of her own debt ; an extent in aid is sued out at the 
instance and for the benefit of the debtor to the crown, or his 
surety, for the recovery of a debt due to himself (Ji). A crown 
debtor is not entitled to use the prerogative process against his 
own debtor after he has paid his debt to the crown, or after his 
debtor has become discharged by the insolvent act, or the 
like (?'). In case of the death of the crown debtor, whenever an 
extent might have issued against the queen's debtor in his lifetime, 
a writ of diem clausit cxlremum, which is an extent against his 
lands and chattels, may issue after his death (j). But no diem 
clausit extremum can regularly issue against the estate of any 
person who was not a debtor to the crown, or found in his life- 
time to be a debtor to the queen's debtor (/c). An extent may 
issue for the queen as well for debts of record as debts not of 
record. Debts of record are founded on judgments, or recog- 
nizances, or inquisitions, taken and returned on commission 
issuing out of the Court of Exchequer (/) : debts not of record 
are on bonds, or simple contracts ; which latter are either due 
from the known officers and accountants to the queen, or from 
third persons {m). 

(^) See Rexi'. Sliackell andotliers, {k) Rex o. Tlie Estate of H. Boon, 

M'Clel. & Younge, 514. Parker, 16. But a diem clausit ex- 

(h) Rex i;. Shackle, 11 Price, 772. tremum may issue if the debt were 

See 57 Geo. 3, c. 117, for regulating really due on simple contract, although 

the granting of extents in aid ; and not found by commission till after the 

see Tidd's Prac. 8th edit. 110 et death of the debtor ; Rex d. Estate of 

seq. This statute does not apply to Curtis, Parker, 95. 

extents in chief in the second degree ; (I) As to which, see Reg. v. Ryle, 

Rex V. Shackle, supru. The crown, 9 M. & W. 227 ; Dean v. Reg., 15 

therefore, may proceed by extent to M. & VV. 475. 

recover a debt due from a person in- (m) When by the inquisition on an 

debted to a crown debtor who has extent debts are found and seized into 

received and misapplied the crown the queen's hands, the crown, on an 

money, although he be not a debtor affidavit of danger, and a baron's fiat, 

to the crown within the 4th section of may proceed by an immediate extent 

that statute: ibid. for their recovery, which is called an 

(i) Rex V. Bingham, 1 C. & J. 131 ; extent in the second degree. So where 

1 C. & M. 862. debts are found on an extent in the 

(j) Bunb. 119. second degree, on an affidavit of dan- 



358 



OF THE EXCHEQUER WRITS. 



CHAP. xvr. The writ of extent issues out of the equity side of the Court 
— - ' ^' - of Exchequer, (which for tlie purposes of its revenue jurisdiction 
"^iheVxu'IIi. ^*''^ subsists, notwithstanding stat. 5 Vict. c. 5) (n), and after 
particularly reciting the debt due to the crown, commands the 
sheriff, to whom it is directed, to omit not by reason of any 
liberty, but to enter the same and take the defendant; and to 
inquire by a jury what lands and tenements, and of what yearly 
value, the defendant had on the day when he first became debtor 
to the crown, or at any time since, (or in the case of a simple 
contract debt, what lands, &c., he now hath), and what goods 
and chattels, and of what sorts and prices, and what debts, 
credits, specialties, and sums of money, the defendant, or any 
person in trust for him or to his use, hath in his bailiwick, and to 
appraise and extend all and singular the said goods and chattels, 
lands, tenements, debts, &c., and to take and seize the same into 
the (jueen's hands. The sheriff is also thereby directed to sum- 
mon before him such persons as he shall think proper, to exa- 
mine them in the premises, and to return the writ to the court, 
with a proviso that he do not sell the goods and chattels till he 
shall be otherwise commanded. The writ of extent cannot be 
antedated (o), but should bear teste on the day it issues, though 
in vacation ; for it issues out of the equity side of the Ex- 
chequer, which is always open (^j). The writ is returnable on 
a general return day. The writ of extent is granted upon the fiat 
of a baron, and is tested by the chief baron, signed by the queen's 
remembrancer, and sealed with the exchequer seal(y). And 
to prevent extents in aid being issued for larger or greater sums 
of money than are really due, by the 57 Geo. 3, c. 117, s. 1, 2, 
it is enacted, " that upon the issuing of every extent in aid on 
behalf of any debtor to his majesty, his majesty's Court of Ex- 
chequer at Westminster, or the chancellor of his majesty's ex- 
chequer, or lord chief baron or other baron of the said court, 

ger, and a baion's /;«(, the crown may Ewins'scase, Parker, 259, 260; West, 

have an extent in the third degree for 303. 

their recovery. It seems that on an (n) Attorney-General v. Hailing, 

extent in chief, the crown may seize 15 M. & VV. 

flebts found to be due to ils debtor, (o) Rex i'. Rawlings, 2 C. M. & 

&c., in iiijinihun ; Bunb. 303 ; and R. 471; 4 Dowl. 407. 

see Gilb. Excheq. 177. But on an (p) Rex v, Mann, 2 Stra. 749; 

extent in aid debts cannot be seized Bunb. 164, S. C; Gilb. Rep. 222; 

beyond the thiid degree, counting the Rex v. ]\Iaberley, 3 Dowl. 383. 

queen's debtor as one of the degrees; (q) West, 56. 



OF EXTENTS. 



359 



srantinsT the fiat for the issuing of such extent in aid, shall cause chap. xvi. 

. SECTt II» 

the amount of the debt or sum of money due or claimed to be ' 

due to his majesty, to be stated and specified in the said jiat ; 
and that in all cases in which the debt or debts found due to the 
debtor to his majesty shall be equal to or exceed the debt stated 
and specified in the said^crf as aforesaid, the amount of the debt 
so stated and specified in the said fiat shall be indorsed upon the 
writ ; and the writ so indorsed shall be deemed to be and be 
the authority and direction to the sheriff or other officer who 
shall execute such writ in making his levy and executing the 
same as to the amount to be levied and to be taken under the 
said writ : and that in all cases in which the debt or debts found 
due to the debtor to his majesty shall be of less amount than 
the debt stated and specified in the said fiat as aforesaid, the 
amount of such debt or debts found due to such debtor to his 
majesty shall be indorsed upon the writ, and the writ so in- 
dorsed shall be deemed to be and be the authority and direction 
to the sheriff or other officer who shall execute the said writ in 
making his levy and executing the same as to the amount to be 
levied and taken under the said writ." 

A warrant should be made under the seal of the sheriff to an Wanant. 
officer, to take the defendant and seize his goods according to the 
exigency of the writ (?•) ; the usual fee allowed for such warrant 
is five shillings. 

The officer may break open the outer door of a dwelling house An ontti 

•' ' _ door may bo 

if not opened on request, for the purpose of arresting the de- broken open 
lendant or of seizing his goods, by vntue oi a writ of extent at extent. 
the suit of the crown (s) ; and, of course, admittance being ob- 
tained at the outer door, for the like purposes an inner door may 
be broken open, even without a previous request of admittance (<). 
As the writ of extent contains a non omittas clause, the sheriff 
may enter a liberty to execute it (m), consequently he should not 
direct a mandate to the bailiff of the liberty to execute it, al- 
though the defendant, his lands and goods be entirely within a 
liberty. 

With respect to the duty of the sheriff in taking the body of Sheritt'sdnty 
the defendant on an extent, he should be taken if found, ahhough body of the 

defendant. 

(r) See form, ywst, Append, c. 15, (t) Hutchinson j;. Birch, 4 Taunt, 

s. 2. 619. 

(s) Semayne's case, 5 Rep. 92 ; (u) See ante, 58. 

Godb. 297. 



iJ60 oi' Tin; kxciiequkr writs. 

ciMi\ XVI. there may be goods and lands sufficient to satisfy the crown 
^^^'''' "• debt. A defendant taken on an extent cannot be admitted to 
bail by the sheriHj the extent being an execufion and not mesne 
process, and the statute 23 Hen. 6, c. 9, does not extend to the 
crown. It is clear that a person who has become bankrupt and 
obtained his certificate, or been discharged under an insolvent 
act, subsequent to the accruing of the crown debt, is not privi- 
leged from arrest even on an extent in aid ; for the crown is 
not bound by the Bankrupt Act, not being specially mentioned 
therein (.r). So it has been held that a bankrupt may be arrested 

^ on an extent during his privilege (?/). But where a bankrupt 

was arrested on a writ of extent, while actually attending to give 
evidence before commissioners of bankrupt, the chancellor dis- 
charged him, as being privileged from arrest at common law (z). 
It seems to have been doubted whether the defendant could be 
in custody at the suit of a subject at the same time that he was 
in custody at the suit of the crown, as it is said by Dyer, C. J., 
" The queen hath not an equal in her kingdom to have interest 
in the body of her prisoner together with her («)." But it is 
now clear that if a defendant be in execution at the suit of a 
subject, and he be afterwards charged in execution with an ex- 
tent, he is in custody as well at the suit of the subject as at the 
suit of the crown (6). 

Ill seizing the The duty of the sheriff on the extent is to seize all the goods 

good".''" * and chattels of the defendant, and therefore he must issue his 

(a) Rex V. Pixley, Bunb. 202; was taken into custody by the sheriff 

Anon. 1 Atk. 262; and see 8 Price, on an extent: on an application on 

671. behalf of the bail for lelief, it was 

(y) Ex parte Temple, 2 Rose, 22. held, 1st, That the bail were not 

(z) Ex parte Russel, 1 Rose, 273; entitled lo have an exoneretxir entered 

see also West, 95. on the bail piece ; 2d, That the crown 

(a) Dyer, 297, pi. 24. having refused its consent lo the de- 

(i) Stevenson's case, Cro. Car. fendant's being surrendered, unless he 

389; Savile, 29; Lord Dacre v, should immediately be remanded lo 

Lassels, Dyer, 197, pi. 44. When the custody of the marshal, that court 

the crown is concerned, the courts will had no authority so to remand him, 

not in general change the custody of after he had been rendered to the 

a defendant, in order that he may be warden of the Pleet : And 3d, That 

charged with a civil suit, or rendered tiie bail could not surrender the de- 

in discharge of his bail, without the fendant by habeas corpus as a matter 

consent of the Attorney-General ; of right without the consent of the 

Tidd's Prac. 289, 8th edit. ; West, crown ; but the court ofTered to give 

90, 91 , 92, 95. In Hodgson v. Tem- the bail lime for rendering the defend- 

pie, 5 Taunt. 503; 1 JVJarsh. 166, ant. See observations on this decision, 

S. C, where a defendant was held lo West, 91, 92 et seq. 
bail in a civil action, after which he 



OF EXTENTS. 



361 



warrant to an officer to execute this part of the writ ; the seizure 
of the goods by virtue of an extent is a seizure in fact, and not - 
a mere seizure in law, as in seizing the debts of the defendant 
by virtue of an extent. The writ of extent only authorizes the 
sheriff to seize the goods of the defendant into his hands, but 
expressly directs him 7iot to sell them until further commanded. 
Whatever, therefore, under the denomination of goods and chat- 
tels, may be taken under a writ o{ fieri facias, may be taken under 
an extent (c). Money also, even before the statute 1 & 2 Vict, 
c. no, might be taken on an extent (c?). A term of years may be 
either appraised as a chattel, or extended as land under the ex- 
tent (e). Goods held by another in trust for the defendant may 
be taken on the extent (/); but goods pawned or pledged, or 
demised or letten, prior to the teste of the extent, for a term cer- 
tain, during the term, or whereon a third person has a lien, cannot 
be taken on an extent, althougli it seems on satisfaction of the 
pledge or lien they may be taken {g). Upon an extent against 
one partner, the crown may seize the property of the partner- 
ship, but the crown can only sell the interest of the partner against 
whom the extent issues, which is his share of the surplus after 
payment of the partnership debts (A). The goods which the 
crown debtor has in autre droit, as executor or administrator, 
cannot be taken on an extent against him in his own right (i). It 
is said that cattle levant and couchant, or other goods of a third 
person on the lands of a defendant, may be taken for the queen's 
debt, but it is apprehended that this is not correct, if it be meant 
that they can be taken on an extent as goods and chattels ; it is 
however true, that cattle of a stranger levant and couchant on the 
land of the defendant may be taken on a levari facias, for such 
cattle are considered to be the profits of the land (k). 

(c) Seeunfe, c. 10, s.2and 3. In (g) Bro. Abr. Pledges, 28; King 
2 Roll. Abr. 160, 1. 5, it is said that v. Humphreys, 1 M'Clel. & Yo. 173 j 
all the goods and chattels of the de- see West, 116. 

fendant may be taken, excepfi/i^ nergs- {h) Rex v. Sanderson, 1 Wight- 

sary victuals for the defendant and wick, 51. 

his family, and oxen aiid'heasts of the (i) 2 Roll. Abr. 159, 1. 49. 

■plowh. ('0 i^tafi'ord v. iiateman. Roll. 

(d) West, 172. Abr. 159; Cro. Eliz. 431, S. C. ; 

(e) Sir Gerard Fleetwood's case, Britton v. Cole, i Lord Raym. 305 ; 
8 Rep. 171. Salk. 395, S. C.j Carth. 441; 6 

(/) This clause was first inserted Mod. 112. 
by order of the court, 1712; West, 
116. 



CHAP. XVI 
SECT. II. 



OF THE EXCHEQUER WRITS, 



CHAP, xvr, 

SECT. II. 

Goods I'rom 
what lime 
bound on a 
writ of ex- 
tent. 



Priority in 
favour of 
execution at 
the suit of 
the crown. 



When the 
frown had 
commenced 
proceedings 
first. 



When the/. 
fa. is deli- 
vered belure 
the teste ol 
the extent. 



As executions at the suit of the crown are not particularly 
mentioned in the Statute of Frauds, the goods of the defendant, 
as upon executions at the suit of the subject at the conimou law, 
are bound from tlie teste of the writ of extent (/). That is, 
notwithstanding any sale or assignment by the defendant of his 
goods, even in market overt (m), after the teste of the writ of 
extent, such goods may be taken by the sheriff on an extent. 
But goods bond Jide assigned, sold, or pawned, before the teste of 
the extent, cannot be seized by virtue of such extent (n). 

By the statute 33 Hen. 8, c. 39, s, 74, it is enacted, that " if 
any suit be commenced or taken, or any process be hereafter 
awarded for the king, for the recovery of any of the king's 
debts, then the same suit and process shall be preferred before 
the suit of any person or persons. And tlial our said sovereign 
lord, his heirs and successors, shall have first execution against 
any defendant or defendants of and for his said debts before 
any other person or persons ; so always that the king's said suit 
he taken and commenced, or piocess awarded for the said debt, at 
the suit of our said sovereign lord the king, his heirs or succes- 
sors, before judgment given /or the said other person or persons." 
On this clause of the statute it has long been settled law, that if 
the crown suit be commenced, or the fiat for the extent be made, 
before the judgment be given for the subject, the execution for 
the crown is to be preferred (o). 

As between the crown and a subject, when the judgment of 
the subject is prior to the commencement of the crown suit, the 
law was not so clearly settled. Where goods are taken on af. fa. 
and remain in the hands of the sheriff unsold at the time when 
a writ of extent, bearing teste prior to the delivery of the _/. /a,, 
is delivered to him, the extent shall be preferred ; so where the 
extent is tested on the same day that the f. fa. was delivered to 
the sheriff, the extent shall he preferred, although the extent 
was tested on a later period of the day than the issuing of the 
f.fd'ip), for as between the crown and the subject the law does 
not take notice of the fraction of a day. But it long remained 



(I) Reg. V. Arnold, 7 Viiier, 105. 
See also Sir Gerard Fleetwood's case, 
8 Rep. 171a; Parker, 103. 

(m) Properly ia goods is not al- 
tered as against the crown by sale in 
market overt ; 2 1 nst. 713; 35 Hen. 6, 



p. 29 ; West, 96. 

(«) West, 97. 

(r)) Butler (. Builer, 1 East, 340; 
Rex V. Aldersey, cit. 1 East, 341. 

(/)) Rex V. Crump and Hanbury, 
Parker, 126; Rex v. Earl, Bunb. 33. 



SECT. II, 



OF EXTENTS. 

a doubtful point whether, when a sheriff had seized goods on a chap. xvi. 
f.fa., which remained in his hands unsold, and an extent tested 
subsequently to the delivery of the Ji. fa. was delivered to the 
sheriff, the crown or the execution creditor should have the 
preference. It was decided both in K. B.(q) and C. P(>) that 
in such case the subject should be preferred. In the case of 
Rex V. Wells and Allnutt(s), and the subsequent one of Rex v. 
Sloper and Allen (t), the Court of Exchequer came to a different 
determination, viz. that in such case the crown was to be pre- 
ferred. The same question was agitated in an action for money 
had and received, brought by the party at whose suit the Ji. fa. 
issued against the sheriff, who had paid over the money to the 
crown, and was then much argued in the Court of King's Bench, 
but the case ultimately turned upon the form of the action being 
incorrect (?i). At length, however, it was solemnly decided by 
the House of Lords, in affirmance of the successive judgments of 
the Court of Common Pleas and of the Exchequer Chamber, 
that where the sheriff seized the goods of a debtor under a f. 
fa., and whilst they remained in his hands unsold an extent in 
chief, tested after the .seizure, was delivered to the sheriff, the 
goods might be seized and sold under the extent, without regard 
to the writ o(f.fa.; and further, that it made no difference in 
this respect whether the extent was in chief or in aid (x). The 
effect of the stat. 33 Hen. 8, c. 39, is thus stated in that case 
by Lord Tenterden: — " I am of opinion that the true effect of 
that statute is to allow the subject to obtain judgment, and even 
to sue out execution, without first rendering satisfaction to the 
king; but nevertheless to leave the law in all other respects as 
it stood before, namely, if the king's execution comes while 
the goods remain the property of the debtor (y), the king's exe- 
cution shall prevail." The course to be pursued by the sheriff is 

(q) Rorke u. Dayrell. 4 T, R. 413. («) Thurston v. Mills, 16 East, 

Lord Kenyon's ground taken there, 264. 

that the propertt/ in the goods is alteied (i) Giles t>. Grover, I Clark &c Fin- 
by the seizure under \heji,fa., is now nelly, 72; 9 Bing. 128, S. C; 2 M. 
abandoned. See Giles d. Grover, i;i- & Scott, 197. See also Stringefellow 
fra, n. (r). v. Brownesoppe, Dyer, 67 b; Rex v. 

( r) Uppon ji. Sumner, 2 Bla. Rep Beck, Bunb. 8 ; and dicta in Attorney- 

1251. General D.Capel, 2 Show. 480; Sniall- 

(s) 16 East, 278, in notes. comb ?;. Buckingham, 5 Mod. C76; 

(t) 6 Price, 114. See also Rex v. Rex v. Cotton. Parker, 112. 
Osbourne. 6 Price, 94 ; Rex. t;. Giles, {y) See ante, 246. 

8 Price, 293. 



364 



OF THE EXCIIKQUER WRITS, 



CHAP. XVI. 
SECT. It. 



Goods dis- 
trained for 
rent, &c. 



When the 
defendant 
has become 
bankrupt. 



clear; for wliere an extent is delivered to the slierifl' whilst he 
has goods in his hands taken by him on aji.fa., which has been 
delivered to him prior to the teste of tlie extent, he should 
refuse to proceed to sale without an indemnity from the plain- 
tiff; if that be refused, the sheriff", when ruled to return the 
writ, should apply for further time to make his return, which the 
court will grant on an affidavit of the circumstances (^). But 
if the goods have been sold under the Ji. fa. before the teste of 
the extent, the proceeds in the sheriff"s hands shall be applicable 
to the Ji. fa., and not to the extent (a). 

Goods which have been distrained for rent before the teste 
of the extent, but not sold, may be seized under the extent (6). 
Nor is the landlord in such case entitled to a year's rent under 
the statute 8 Anne, c. 14, s. 1. For by the eighth section of 
that act it is provided, that " nothing in that act contained shall 
extend or be construed to extend to let, hinder or prejudice her 
majesty, her heirs or successors, in the levying, recovering or 
seizing any debts, fines, penalties or forfeitures that are or shall 
be due, payable or ansvverable to her majesty, her heirs or suc- 
cessors ; but that it shall and may be lawful for her majesty, 
her heirs and successors, to levy, recover, and seize such debts, 
fines, penalties and forfeitures in the same manner as if that act 
had never been made ; any thing in the act contained to the 
contrary thereof in anywise notwithstanding (c)." 

Goods of a bankrupt may be taken under an extent, the teste 
of which is previous to the appointment of assignees ; for the 
queen is not boimd by the acts relating to bankrupts, (not 
being named therein,) and before the appointment of assignees, 
the commissioners have but a power (rf). But if the goods are 
vested in the assignees previous to the teste of the writ, they 
cannot be taken on the extent, because then the property is 



(z) Wells V. Pickman, 7 T. R. 174 ; 
'J'huiston V. Thurston, 1 Taunt. 120; 
In cases like these, the sheriff should 
gel the jury to find the tact specially, 
as was done in Rex v. Cotton, Parker, 
112; and Rex. v. Wells and AllnuU, 
16 East, 281. But the facts must be 
found so that some certain traverse 
may be taken on the inquisition; Rex 
V. Sherwood, West, 1 14. 

(a) Swain r. Morland, 1 Bred. & 



Ring. 370 ; 3 Moore, 740, S. C. See 
also Payne v. Drewe, 4 East, 540 ; 
Rex V. Sloper, 6 Price, 1 14. 

(h) Rex V. Cotton, Parker, 112; 
and see West, 101. 

(c) See Rex v. Pritchard, Bunb. 
269. 

(rf) Awdley v. Halsey, Sir W, 
Jones, 202; Parker, 127; Brassey 
t>. Dawson, 2 Stra. 978, 



tenl. 



OF EXTENTS. 365 

absolutely transferred (e). If the appointment of assignees and chap. xvi. 
the teste of the extent be on the same day, the queen's prero- ^^^^' 
gative shall prevail (/). 

Goods assigned by the defendant before the teste of the ex- Goods as- 

r< T -n 1 • /• J 1 signed to cre- 

tent, m trust for creditors, if the assignment be not fraudulent, dUors. 
cannot be taken on an extent, even though the defendant were a 
trader within the bankrupt laws, and the assignment be an act 
of bankruptcy, and void as against his assignees (g). But goods 
fraudulently conveyed away before the teste of the extent to 
defeat the execution, may be taken as well under an extent as 
under a. Ji. fa. (Ji). The lien of an agent or factor of the crown 
debtor on goods of his in the factor's hands, for bills of ex- 
change accepted by him to the amount of the value of the goods, 
will prevail against the right of the crown on an extent tested 
after the goods came into the factor's hands (i). 

As to priority between several writs of extent. Extents in chief Priority be- 
take place inter se according to their teste. An extent in chief, J^uTof\x' 
finding the same goods found upon a former extent in aid, shall 
be preferred and paid before it (Jc). So after the sale of goods 
on an extent in aid, and before the payment over of the money, 
if an extent in chief come, and the same goods be found in the 
inquisition, the extent in chief shall be preferred (^). If goods 
are found on an extent in aid, and then an extent in chief 
comes, on which goods are found, but not the same that were 
found on the extent in aid, as to which no evidence is offered, 
nor is it insisted that they should be found ; and then another 
extent in chief comes, and the party prosecuting it offers to find 
what was seized in aid, and is refused : the court will order a 
new extent of the like teste as the second extent in chief, and 
refuse it to the first extent in chief (?«). 

(e) Rex V. Marsh, M'Clel. & der a subsequent extent which have 

Younge, 250 ; Rex v. Crump and been found under a prior extent, it 

Hanbury, Parker, 126 ; 1 Atk. 95. should be mentioned in the second in- 

(/) Rex V. Earl, Bunb. 33. quisition that these goods are subject 

{g) Rex D. Watson, West, 115. to the first extent. And where the 

(Ti) West, 115. two extents are executed at the same 

(j) Rex V. Lee, 6 Price, 369. See time, as the sheriff may have some 

Rex V. Cuther, Parker, 118. doubt about their priority, it would 

(/c) Reg. V. Quash, Parker, 281; seem to be the safest way to mention 

Rex V. Larking, 8 Price, 683. in the inquisition under each extent 

(/) Parker, 282. tiiat the goods are seized under the 

(m) Rex D. Bowdage, Parker, 283. other extent; West, 118. 

Where the same goods are found un- 



3G6 OF TIIK EXCHEQUER WRITS. 



CHAP. XVI. Under an extent for duties or penalties incurred under tlie 

^^^^' "• excise laws, the utensils, goods, materials, preparations, and 

iMaieriais vesscls, employed in the particular manufactory in which such 

used in ma- . ii-i. i ii ii, 

ntifactnring dutics and penalties have arisen, may be taken, although the 
ariicic8. property in such utensils does not, nor ever did, belong to the 

defendant; for by the stat. 28 Geo. 3, c. 37, s. 21, a specific 
lien on such materials, &c. has been given to the crown for the 
duties and penalties arising from such manufacture. So also if 
the utensils have been seized and sold under aji.fa. prior to the 
teste of the extent, yet they are liable to be taken under a crown 
extent in the hands of such purchaser (n). And in the case of 
Rex V. Wells and Allnutt (o), it was argued that the crown, 
under the several excise laws, had a specific lien upon all the 
goods and materials used by the defendant in his excise manu- 
factory, and that no subsequent act of the defendant could divest 
such lien. The point was not then determined. 

It has been decided, on this statute, that the crown has a lien 
upon malt for malt duties unpaid at the time of the bankruptcy ; 
and the malt of the bankrupt is liable, although seized by the 
assignees under the assignment (p). And if after the assignment 
under a commission of bankrupt against a candle-maker, an infor- 
mation be exhibited against him for not having paid the single 
duties then due and payable for candles made by him for some 
time before he was a bankrupt ; and upon such information he be 
convicted in the penalty of double duties ; all his candles, and 
all his materials and utensils for making candles, in the posses- 
sion of the assignees, are liable to the payment of the double 
duties (q). Under this statute, malt held by a maltster as a 
pledge for the payment of bills of exchange accepted by him for 

(n) The Attorney-General v. Fort, the teste of tlie crown's execution, and 

Sittings at Serjeants' Inn, after Trinity it was adjudged that the return of nulla 

Teim, 1804, on a special case; which bona was false, for which reason the 

was an information against the sherifT sheriff was responsible to the crown 

of Wilts, for a false return of mdla for damages to the amount of the value 

6o«a loan exchequer execution against of these paper-making utensils; 8 

a paper-maker for penalties incurred Price, 364. 
under the 34 Geo. 3, c. 2, s. 1 , 9, 14, (n) 16 East, 278, n. 

and 15. The sheriff had a few days (/>) Attorney-General v. Senior, 

anterior to the teste of the crown's exe- Uougl. 416; Rex i>. Fowler, fft. 
cution seized the paper-making uten- (q) Stracy v. Halse, Doug. 412. 

sils of defendant's mill under a Ji. fa. Sed vide Austin c. Whitehead, 6 T. R. 

and sold them ; but they remained in 437. 
the sherifT's bailiwick at the time of 



crown debtor. 



OF EXTENTS. 367 

the maker of tlie malt, with liberty to sell it in case the bills are chap. xvi. 
not paid, are seizable in the hands of the maltster for duties for ^^^^' "' 
which he was liable in respect of other goods (9). 

On an extent, the freehold lands of a crown debtor were liable, Lands of the 
at the common law, to be taken for the crown debt, and may be 
taken as well as his body and goods (r). The sheriff may seize 
into the king's hands, not only the legal estate of the defendant, 
but also trust estates (s), or an equity of redemption (t), or lands 
over which the crown debtor has a power of revocation (u). But 
copyhold lands cannot be taken under an extent (a;). Leasehold 
property may be either taken as goods or chattels, or as the land 
of the defendant (?/). And the interest of the crown debtor in 
leaseholds renewable on lives may be taken under the statute 
25 Geo. 3, c. 35, s. 1 (3). In one case it was held that a term 
for years created out of an estate, prior to the right of the crown 
attaching on the estate, and assigned to a trustee in trust for a 
purchaser, would not protect such purchaser against crown debts, 
though he purchased bond fide and without notice (ci). But in a 
more recent case it was held, that a term of years originally 
created out of an estate purchased by a person who afterwards 
became a debtor to the crown, to secure a sum of money due 
from him to one of the vendors, and vested in a trustee for that 
purpose, and afterwards assigned to a trustee for a subsequent 
pui'chaser of the estate to attend the inheritance, is not liable to 
an extent for a crown debt, for the last purchaser claims directly 
under the first incumbrancer, by a title paramount to the crown 
debt (6). An equitable mortgage by deposit of title deeds by 
an accountant of the crown in the hands of a person who has 
an opportunity of knowing that the depositor is, or is likely to 
become, a debtor of the crown, is not available against an ex- 
tent (c). So an assignment, in a voluntary settlement, of a term 

(5) Attorney-General v. 'I'rueinan, (^/) Fleetwood's case, 8 Rep. 179; 

11 M, & \V. 694. See now the stat. but it is only bound from the teste of 

4 & 5 Vict. c. 20. the extent, and not fiom the lime of 

(r) See Wilde v. Fort, 4 Taunt. the crown debt being recorded. 

334. (s) Reg. v. Lane, 6 M. & W. 489. 

(s) Harbert's case, 3 Rep. 12. (a) Rex v. Smith, Sugd. Vend. 

(t) Rex V, DelamoUe, Forest's and Purchas. Append. 24, 5th edit. 

Rep. 162; R,ex v. Coombes, 1 Price, See Pleadings, M'Cleland's Rep. 417. 

207; Hard. 488. (6) Rex v. Lamb, M'Cleland, 402. 

(i() Godbolt, 289; Attorney-Gene- (c) Broughton v, Davis, 1 Price, 

ral V. Sands, Hard. 488. 216. See Casberd v. Attorney- Gene- 

(«) Rex V, Lord Viscount Lisle, ral, 1 Daniel, 238. 
Parker, 195. 



368 



OF THE EXCHEQUER WRITS. 



CHAP. XVI. 
SECT. II. 



Lands from 
what time 
bound. 



to a trustee to attend the inlieritance as limited by the settle- 
ment, will not protect the inheritance in fee against a crown debt 
due from the settlor (rf). But a bond fide agreement, on the 
borrowing of money, that real property of the borrower shall 
stand pledged for repayment of it, and a delivery of the title 
deeds to the lender, creates a lien binding as against the prero- 
gative lien of the crown in respect of a debt subsequently accru- 
ing due to the crown from the borrower ; and the equitable 
mortgagee is therefore entitled to be first paid his principal and 
interest out of the produce of the sale of the lands, when seized 
under an extent for the crown debt (e). 

The lands are bound, as to time, according to the nature of 
the debt. Debts of record seem always to have bound the lands 
from the date of the record (/). Specialties do not bind the 
lands otherwise than simple contract debts, which only bind the 
lands from the time they are recorded {g). Bonds, which are 
taken in the form prescribed by the 3Q Hen. 8, and which are 
thereby put on the footing of statutes staple, bind the land from 
the time they are entered into {h). Simple contract debts due 
to the crown from any of the officers, collectors, receivers, &c. 
described in 13 Eliz. c. 4, s. 2, bind the lands (if incurred at 
any time during the continuance in office) from the time of 
entering into the office (i). By the SS Hen. 8, c. 39, s. 74, 
where the process of the crown is awarded, even on a simple 
contract debt, before the subject's judgment, the crown is entitled 
to a preference (/t) . But judgment and execution executed on 
an elegit, before the commencement of the crown process, shall 
be preferred to the extent (/). And it is said if the subject's 
debt be by statute staple, or judgment, prior to the queen's debt, 
and the queen extend the lands first, the subject shall not by any 
after-execution take them out of the hands of the crown (m). 
So if after an extent on such judgment, and before the liberate, 
a crown extent comes to the sheriff, the subject's execution shall 
be postponed to the crown extent (?0. Lands bargained and sold 



((0 Rex V. St. John, 2 Price, 317. 

(e) Fector v. PhilpoU, 12 Price, 
197. 

(/) Gilb. Exch. 88; Dyer, 224; 
8 Rep. 171. 

(g) Rex V. Smith, 1 Wightw. 34. 

(/() Ibid. 

(0 West, 127, 128; Wilder. Fort, 



4 Taunt. 334. 

(k) West, 102, 

(i) Attorney-General v. Andrew, 
Hard. 23; West, 160. 

(»») Gilb. Exch. 91 ; but see West, 
151. 

(m) Gilb. Exch. 91 ; but see West, 



OF EXTENTS. 



369 



by the commissioners of bankrupt to the assignees may be taken chap. xvr. 

under an extent, the teste of which is subsequent to the bargain '. — 1— 

and sale, but prior to the inrolment (o). 

The debts due to the defendant are hable to a crown extent; Debts, what 

•111 1 1-11 I'll 1 "'"y ^^ taken 

even on extents m aid, debts to the thud degree are so liable, that on an extent, 
is to say, those of the defendant's debtor's debtor, whether such 
debts be by simple contract or by specialty (p). The defendant, 
as well as his debtors to the third degree, are bound to disclose 
the nature and particulars of such debts before the inquisition (^r). 
Debts, like goods and chattels, are bound from the teste of the 
writ of extent ; that is, a mere assignment of the debt to the 
assignees of a bankrupt, or any other assignment thereof, between 
the teste of the extent and the caption of the inquisition, will not 
discharge the debtor as against the crown (r). But the payment 
of a debt to the crown debtor, after the teste of the extent, and 
before the caption of the inquisition, will discharge the party 
paying without notice of the crown process ; for an inquisition 
upon an extent finding a debt due to the crown debtor must 
find it to be due on the day of the taking of the inquisition, as well 
as on the issuing of the extent {s). Specialties, although not then 
due (0 ; money in the defendant's possession («) ; or bills of 
exchange in the hands of the crown debtor, although not due, 
should be found in the inquisition (x), stating the liabilities of 
the several parties on the bill to the crown debtor ; although it 
would appear that if the bill were due at the taking of the inqui- 
sition, the crown could not have a scire facias against the drawer 
without finding a default by the acceptor {ij). If the crown 
debtor has indorsed over a bill, which is not due at the time of 
the inquisition, such debt should not be found {z). So if the 
debtor of the crown debtor have accepted a bill drawn on him 
by the crown debtor in favour of a third person (a) ; or if the 

(o) West, 149. (i) West, 165. The regular proof 

(p) Parker, 259. of the handwriting of the acceptor, 

(?) Reg. V. Newell, Parker, 269. &c., requisite in an action on such an 

(?■) West, 164; Reg. v. Arnold, instrument, is necessary to enable the 

7 Vin. 104 ; S. C. West, 327. jury to find such liability ; if such evi- 

(s) Rex V. Green, Bunb. 265; dence be not produced, the inquisition 

S. C. West, 329; Rex in aid of Cox should find that the bill purported to 

V. Gleny, West, 163, 164. be wade, 6;c. 
(t) Hughes, 118, 119; West, 172, (y) West, 167. 

173. (i) Rex V. DawsoD, Wighlw. 32. 

(it) West, 172j but money is not (a) Hughes, 186;'West, 169. 

bound fiom the teste of the extent. 



370 



OF THE EXCIIEaUER WRITS. 



CHAP. XVI. debtor to the crown debtor have drawn a bill on a third person 
— ; — '. — !_ for the debt in favour of the crown debtor, which has been ac- 
cepted by the drawee, and is not due at the time of the inquisi- 
tion, such debts cannot be found on the inquisition (6). Under 
an extent against one, the debts due to that one and others 
jointly may be seized (c) ; but in such cases the partner of the 
crown debtor may have account against the crown in equity (rf). 
The sheriff has no power by virtue of the extent to levy or re- 
ceive the debts found on the inquisition ; he is merely to seize 
the debts, which is a mere seizure in law ; upon the return of 
the inquisition the Court of Exchequer will issue a scire facias, 
or immediate extent, to the sheriff, to levy the debt from the 
debtor of the crown debtor. 
Of the hold- If any goods are seized, or if information be given (which is 
of the inqui- generally done by the officers of the revenue) that the defendant 
has any lands or goods, or debts due to him, or has any other 
property, it is the duty of the sheriff to hold an inquisition, in 
order to find whether or not the defendant is possessed of any 
property. A summons should be issued by the sheriff to the 
defendant, and to all other pei'sons who can give any evidence 
as to the defendant's property, to attend before the inquisi- 
tion (e) ; if either the defendant or the witnesses summoned do 
not attend, or refuse to answer any questions put to them (ex- 
cepting only questions the answers to which would subject them 
to punishment), the Court of Exchequer will grant an attach- 
ment against them (/). It often happens that the defendant, 
or other persons set up bond fide sales or mortgages of the de- 
fendant's property ; in case of such claim, it is apprehended that 
the evidence necessary in the Court of Exchequer in a similar 
case should be required before the inquisition, viz. the actual 
payment of the money by the vendee or mortgagee (g-). The 
under-sheriff may either adjourn the inquisition, or hold another 

(6) West, 169; Hughes, 155. an extent against William Forge, for 
(c) West, 170. penalties for which the crown had 
(</) West, 171. obtained a verdict against him for 
(e) See form, Append, chap. 16, carrying on a private candle manufac- 
sect. 2. tory. To this extent the defendants 
(/) Reg. v Newell, Parker, 269. pleaded, that before the recovery of 
(g) Rex V. Ward and oihers, exe- the king's judgment, Forge, in consi- 
cutors of Ralph Kiltie, Excheq. 1803. deration of a certain sum of money, by 
The defendants claimed property in indenture assigned the houses to de- 
certain leasehold houses seized under fendaut's testator for the residue of 



OF EXTENTS. 



371 



before the return-day of the writ, to find the property not found chap. xvi. 

by the first, and return both inquisitions to the court. The form ' 

of the inquisition, and of the various findings, as well as in what 

manner it is to be executed, will be found in the Appendix to 

this work (A). The sheriff, on hearing the evidence, should 

allow all competent witnesses to be examined ; for where he 

refuses to permit a witness to be examined to prove the property 

taken under the extent, or a question to be put in the nature of 

a cross-examination, the court will quash the inquisition (i), as 

the inquisition on an extent is an office of entitling, and not of 

instruction. 

In the findings, every fact should be stated with precision, 
and the lands particularly described ; if the facts are not found 
with sufficient precision, so as to enable the party to traverse 
them, the return is bad, and the court will set it aside, and issue 
a new writ (A;). 

The sheriff makes his return to the extent according to the TLe return, 
fact ; if there be no lands or goods, the sheriff should return 
that at once ; if lands or goods be extended, the sheriff should 
return that the execution of the writ will appear by the inquisi- 
tion annexed, which inquisition, engrossed on parchment, under 
the seal of the sheriff and of each of the jurymen, is annexed 
to the writ. The sheriff returns cepi corpus or non est inventusy 

the terms ; to which the attorney-ge- Wilson put in a plea denying the debt, 
neral replied that this indenture was and the issue thereon was tried at the 
made by fraud and covin; issue sittings after Hilary term, 1806, when 
thereon. At the trial, the defendants Wilson's witnesses produced Sawyer's 
proved the execution of the deed, and receipts for the money, and proved the 
of Forge's signature to the receipt in- signatuies thereto to be Sawyer's hand- 
dorsed, but the attorney-general in- writing. The attorney.general con- 
sisted that the crown was entitled to a tended that the receipts were of no 
verdict, forwant of proof of the testator validity against the crown; and that 
having actually paid Forge the consi- notliing but proof of the money having 
deration money. The lord chief baron been actually paid by Wilson to Saw- 
ruled for the crown, and the jury gave yer would bar the crown. The lord 
a verdict accordingly; the Court of chief baron, after hearing the point 
Exchequerrefused to grant a new trial, argued by the counsel on behalf of 
on a motion to that effect made oq Wilson, ruled in favour of the crown, 
this ground. The same point arose The point was very fully argued on a 
in Rex v. George Wilson, who, on motion for a new trial in the Exche- 
an extent issued against one Sawyer, quer, in Trinity term, 1806, when the 
was returned in the sheriff's inqui- court refused a new trial, 
sition as being a debtor to Sawyer; (/i) Append, to chap. 16, sect. 2. 
but Wilson refusing to pay this debt See also West, 330. 
to the crown, an exchequer sci fa. (i) Rex v. Bickley, 3 Price, 454. 
was issued against him : to the sci. fa. (k) Rex v, Sherwood, 3 Price, 269. 

T! R 9. 



372 OF THE EXCHEQUER WRITS. 

CHAP. XVI. according to the fact. Upon an extent on a statute staple, the 
^^^^' "• sheriff returned the extent of the lands, and not of the goods, 
yet it was held good (/). It is a good return hy the sheriff that 
he hath extended the land of the defendant, but that he cannot 
deliver the same, for that another had the same in extent be- 
fore (m). So, as it seems, it would be a good return, that the 
sheriff has extended goods or money of the debtor, but that 
he cannot deliver it because it is in the possession of a third 
party (n). 

Venditioni The Court of Exchequer, after the return of the writ and 

exponas. .... . . . 

inquisition, will issue a writ of venditioni exjwnas, to sell the 
goods, an order to sell the land, or a scire facias to collect the 
debts. The court refused, at the instance of the crown, to direct 
a sale by private contract instead of by auction, but referred it 
to the remembrancer to certify which was the most advantageous 
mode of selling the property (o). The duty of the sheriff is 
only to issue his warrant to the bailiffs in possession, to proceed 
according to the exigency of such writs or order (p). 
Sheiiff's The sheriff is liable in an information at the suit of her 

liabilities. . ^ o -i •/>ii 

majesty s attorney-general for damages, if he has made a false 
return {q), or has allowed the defendant, arrested by him by 
virtue of an extent, to escape. 

(/) Bro. Trav. 438. (o) Reg. v. Lane, 6 M. & W. 489. 

(m) Dalt. 125, and see forms, post, (p) See form, post, Append, c. 16, 

Append, c. 16, s. 2. s. 2. 

(«) Reg. V. Austin, 10 M. & W. ((/) Altorney-Geneial v. Fort, Esq. 

691 . sheriff of Wilts, ante, p. 366, n. (n). 



POUNDAGE ON CROWN PROCESS. 



373 



CHAP. XVI. 
SECT. III. 

Section III. 
Poundage on Crown Process (?). 
By the statute 3 Geo. 1, c. 15, s. 3, it is enacted, that all sheriffs The pound- 

•' ' age to be 

who shall levy any debts, duties, or sums whatsoever, except allowed on an 

^ , ; , • , • 1 • 1 • il extent, &c. 

post fines due to the king s majesty, his heirs or successors, by 
process to them directed upon the summons of the pipe or green 
wax, or by levari facias out of the Court of Exchequer, shall 
have an allowance of 12d. out of every 20*. for any sum not 
exceeding 100^. levied or collected, and 6d. only for every 20*. 
above the first lOOZ. ; and for all debts (except posf fines) due 
to his majesty, &c., by process o^ fieri facias and extent, issuing 
out of the Court of Exchequer, \s. 6d. out of every 20*. for 
any sum not exceeding 100/. levied, and I2d. only for every 
20s. over and above the first 100/.; provided that such sheriff 
shall answer the same upon his account by the general sealing 
day of such term in which he ought to be dismissed the court, 
or in such time to which he shall have a day granted to finish 
his accounts by warrant signed by the lord chief baron, or one 
of the barons of the coif of the said court for the time being. 

Sect. 9 enacts, that when any sheriff shall, by process out of Apportion- 
the Exchequer, seize or extend any goods, &c. into the hands of the laieanti 
his majesty for any debts due to the crown, and shall die or be Biie^ffr*^" 
superseded before a writ of venditioni exponas be awarded to 
him for sale, or before such sheriff hath made actual sale, and a 
writ shall afterwards be awarded to a subsequent sheriff, who 
shall make sale, &c. of such goods, &:c. so seized by such pre- 
ceding sheriff, in such case the Exchequer, if then sitting, and 
if not sitting the said barons, or any one of them, being of the 
degree of the coif, shall order and apportion poundage due for 
such seizure and sale betwixt such preceding and subsequent 
sheriffs, as to him or them shall seem meet, with regard to the 
expense and trouble each sheriff hath had or shall have in the 
execution of tlie said process. 

Sect. 13. No sheriff, &c. in levying debts due to the crown Penalties for 
by process out of the Exchequer, shall take any fee on pretence 

(r) Which is not afTected by the 1 Vict. c. 55 {ante, p. 103), the crown not 
being expressly named therein. 



374 OF THE EXCHEQUER WRITS. 

CHAP. XVI. of such levying, &c. (except id. for an acquittance of such sum 
^^^^''"' as shall be levied), which acquittance such officer is to give to 
the person on whom such debt, &c. is levied, and the bailiff, 
&c. receiving such debt, &c., shall account for the same to the 
sheriff, and may require an acquittance from such sheriff with- 
out a fee ; from which debts the sheriffs shall discharge the 
debtors by totting and answering the same on their accounts in 
the Exchequer. 

Penalties for And in case any sheriff, &c. shall nihil or not duly answer to 

not duly an- ./ > j ^ 

swering, &c. the crovvn any debt or sum so levied, collected, or received, such 
sheriff, &c. for every such offence shall forfeit treble damages 
to the party grieved, and double the sum so nihilled or not duly 
answered as aforesaid ; which damages and penalty shall be 
ordered, decreed, and given to the person grieved by the Court 
of Exchequer, upon complaint and proof of such abuse as afore- 
said, made and exhibited before the barons of the said court, in 
such short and summary method as to them shall seem meet. 
And in case any sheriff, &c. shall presume to demand, take, or 
receive any sum of money o